2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-29-2013

Jose Xenos v. Paul Singley

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-4043

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Recommended Citation

"Jose Xenos v. Paul Singley" (2013). 2013 Decisions. Paper 473.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-4043

___________

JOSE FREMONDE XENOS, Appellant

v.

PAUL SINGLEY, INTENSIVE SUPERVISION COUNTY PROBATION OFFICER; 

MARIE D. BARTOSH, CHIEF ADULT PROBATION OFFICER; NORTHAMPTON 

COUNTY DEPARTMENT OF ADULT PROBATION; COUNTY OF 

NORTHAMPTON

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 5-11-cv-01550)

District Judge: Honorable Berle M. Schiller

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

July 26, 2013

Before: SCIRICA, JORDAN and GREENAWAY, JR., Circuit Judges

(Opinion filed: July 29, 2013)

___________

OPINION

___________

PER CURIAM

Jose Xenos appeals the District Court’s order granting Appellees’ motion to 

dismiss his complaint. For the reasons below, we will affirm the District Court’s order.
2

In August 2007, Xenos pleaded nolo contendere in Northampton County to 

forgery. He was sentenced to three to eighteen months in prison and twenty-four months 

of county probation. The judge also ordered that he not have contact with the two

victims. Xenos was then released to parole. According to the state court’s docket, on 

June 23, 2008, a Petition for Review of Parole was filed. Xenos was subsequently 

arrested on September 2, 2008, and a Gagnon I hearing was held.1

On September 18, 2009, Singley informed the sentencing court that Xenos had 

violated the conditions of his supervision by failing to contact the Adult Probation 

Department. The sentencing court signed an order for Xenos’s arrest, and he was 

arrested on September 21, 2009. The next day, the court vacated the warrant and released 

 Xenos was released, 

and it was noted on the docket that any violations would result in a bench warrant. On 

March 5, 2009, Appellee Singley filed a petition for review of Xenos’s parole. He stated 

that Xenos had violated the technical conditions of his parole. The court held Gagnon I 

and II hearings. On March 25, 2009, the sentencing judge, based on the findings and 

recommendation of a doctor, ordered Xenos committed to a mental hospital for an 

evaluation to determine or restore competency. On September 11, 2009, Xenos was 

released.

 1 In Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973), the Supreme Court held that “a 

probationer, like a parolee, is entitled to a preliminary and final revocation hearing under 

the conditions specified in Morrissey v. Brewer, [408 U.S. 471 (1972)].”
3

Xenos. In November 2009, Xenos’s case was closed because he had been compliant for 

sixty days.

In his complaint, Xenos asserts that he was unlawfully put on probation and 

unlawfully arrested three times: September 2, 2008, March 3, 2009, and September 21, 

2009. He contended that Northampton County and its Department of Adult Probation 

failed to train their personnel. Appellees filed a motion to dismiss on the ground that 

Xenos had failed to state a claim. The District Court determined that Xenos failed to 

state a claim against Appellee Singley for unlawful probation supervision or unlawful 

arrest or against Appellee Bartosh for supervisory liability. It also concluded that Xenos 

failed to state a claim against Northampton County and its Department of Adult 

Probation for failure to train its personnel. Xenos filed a timely notice of appeal.

We have jurisdiction under 8 U.S.C. § 1291 and review the District Court’s order 

granting the motion to dismiss de novo. Dique v. New Jersey State Police, 603 F.3d 181, 

188 (3d Cir. 2010). On appeal, Xenos challenges the validity of his conviction, sentence, 

and parole and probation violations. As noted by the District Court, these claims are 

barred by Heck v. Humphrey, 512 U.S. 477, 487 (1994) (civil action that would impugn a 

criminal conviction if successful cannot be maintained until that conviction is 

invalidated); see also Williams v. Consovoy, 453 F.3d 173, 177 (3d Cir. 2006) (holding 

that Heck bars challenge to parole revocation).
4

Xenos argues on appeal that only a sentencing judge may set conditions for parole 

and the probation officers should have known that they cannot set the conditions.2

We agree with the District Court that Xenos failed to state a claim. For the 

reasons above, we will affirm the District Court’s order.

 He 

alleged that he was unlawfully arrested for a technical parole violation. However, as 

noted above, Xenos has not shown that any of the determinations that he violated his 

probation or parole have been invalidated. He has not argued that he did not receive the 

hearings to which he was entitled.

 2 Attached to a petition for rehearing in a separate appeal, C.A. No. 08-1699, Xenos 

submitted a copy of the petition he filed in August 2007 for release to parole. He agreed 

that he would abide by all the rules and conditions laid down for his conduct by the 

Probation Office.