NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 15-1465

___________

RICHARD D. TAYLOR,

 Appellant

v.

DAVID HENDERSON; WILLIAM C. 

PFEIFER; JOYCE BEMBRY; LEEANN 

BULLOCK; GREGORY GARCIA; JAMES T. JUSTICE

____________________________________

On Appeal from the United States District Court

for the District of Delaware

(D.C. Civil Action No. 1-12-cv-01105)

District Judge: Honorable Gregory M. Sleet

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

November 17, 2015

Before: CHAGARES, KRAUSE and GREENBERG, Circuit Judges

(Opinion filed: November 19, 2015)

___________

OPINION*

___________

PER CURIAM

Richard D. Taylor appeals from the order of the District Court dismissing his 

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
amended complaint and denying his motion to further amend as moot. We will affirm in 

part, vacate in part, and remand for further proceedings.

I.

Taylor is a Delaware inmate serving two concurrent terms of life imprisonment 

imposed in 1971 for rape and kidnapping. Following a series of paroles and parole 

revocations, Taylor’s parole was revoked again in 2004 after he tested positive for 

cocaine, and he has remained in prison ever since. At issue in this case are Taylor’s 

applications for parole that the Delaware Board of Parole (the “Board”) denied in 2008, 

2012 and 2014. The Board denied parole in 2008 on six grounds, including the “violent 

nature of offense” and Taylor’s “substance abuse history.” The Board again cited the 

“violent nature of offense” and four other grounds when denying parole in 2012.

After the Board’s 2012 denial, Taylor filed the suit at issue here and later amended 

his complaint. The amended complaint asserts essentially two claims. First, Taylor 

claims that it was improper for the Board to rely on the nature of his underlying offense 

because the Board previously paroled him notwithstanding the nature of that offense. 

Taylor sought otherwise unspecified injunctive relief on this claim and requested a 

determination “whether the Board of Parole can continue to deny me re-parole based on 

the Serious Nature of My Offense.” (ECF No. 16 at 3.) 

Second, Taylor claims that the Board’s reliance on his history of substance abuse 

violated his rights under Title II of the Americans With Disabilities Act (“ADA”). 

Taylor has been diagnosed with Post Traumatic Stress Disorder (“PTSD”) arising from 

 

constitute binding precedent.
his service in the military in Vietnam, and he appears to claim that both that disorder and 

his drug addiction constitute disabilities for ADA purposes. He further claims that his 

PTSD was the underlying cause of his substance abuse and that he cannot obtain 

adequate treatment for his PTSD while in prison. He also alleges that the Department of 

Veteran Affairs has approved him for a re-entry program that would provide such 

treatment but that he cannot avail himself of that program because the Board’s denials of 

parole are keeping him in prison. Thus, he appears to claim that the Board is violating 

the ADA by (1) relying on his history of substance abuse in denying parole while (2) 

effectively denying him the PTSD treatment necessary to remedy that substance abuse.

The defendant Board members1filed a motion under Fed. R. Civ. P. 12(b)(6) to 

dismiss Taylor’s amended complaint on statute of limitations and other grounds. Taylor 

responded with a motion to further amend to include the same challenges to the Board’s 

materially identical 2014 denial of parole. Taylor also sought to assert as a third claim 

that the Board acted arbitrarily by relying on impermissible factors in violation of the 

Due Process Clause of the Fourteenth Amendment. The District Court granted the 

Board’s motion and dismissed Taylor’s amended complaint solely on statute of 

limitations grounds. In doing so, the District Court addressed Taylor’s proposed second 

amended complaint, but it did not grant Taylor leave to file that second amended 

 

1 Taylor named as defendants individual members of the Board but never named or 

sought to name the Board itself. The defendants argue on appeal that we should affirm 

the dismissal of Taylor’s amended complaint because he never named the Board itself as 

a defendant or served process on a majority of the Board members. We do not decide 

that issue as discussed below, and we hereafter refer to the defendants collectively as the 

Board solely for ease of reference.
complaint and instead denied his motion to amend as moot. We construe these rulings to 

include a ruling that the proposed amendment would be futile. Taylor appeals.2

II.

Taylor claims that the Board (1) denied him due process by relying on the nature 

of his offense and (2) denied him due process and violated the ADA by relying on his 

history of substance abuse. The parties and the District Court agree that these claims are 

governed by Delaware’s two-year statute of limitations for personal injury actions. See

Disabled in Action of Pa. v. S.E. Pa. Transp. Auth., 539 F.3d 199, 208 (3d Cir. 2008) 

(ADA); McDowell v. Del. State Police, 88 F.3d 188, 190 (3d Cir. 1996) (§ 1983). 

The District Court concluded that Taylor’s claims are untimely in their entirety. 

As we will explain, we agree as to Taylor’s claim that the Board denied him due process 

by relying on the nature of his offense. We further agree as to Taylor’s claims that the 

Board denied him due process and violated the ADA by relying on his history of 

substance abuse, at least to the extent that those claims challenge the Board’s reliance on 

that factor per se. Those claims, however, have another aspect that the District Court did 

not acknowledge and that cannot be deemed untimely at this stage.

 

2 Taylor properly asserted his claims under 42 U.S.C. § 1983 and the ADA rather than in 

a habeas petition because success on his claims that the Board relied in part on 

impermissible factors would result merely in a new parole determination and not 

immediate release from prison. See Wilkinson v. Dotson, 544 U.S. 74, 82 (2005) (§ 

1983); Benchoff v. Colleran, 404 F.3d 812, 815 n.4 (3d Cir. 2005) (same); Bogovich v. 

Sandoval, 189 F.3d 999, 1003-04 (9th Cir. 1999) (ADA). Thus, the District Court 

properly exercised jurisdiction, and we have jurisdiction under 28 U.S.C. § 1291. “We 

exercise plenary review of the District Court’s dismissal of [a] Complaint on statute of 

limitations grounds under Fed. R. Civ. P. 12(b)(6).” Romero v. Allstate Corp., 404 F.3d 

212, 220 (3d Cir. 2005). 
The District Court dismissed Taylor’s due process claim regarding the Board’s 

reliance on the nature of his offense because he learned of that alleged injury when the 

Board denied parole in 2008 but did not file suit until over four years later after the Board 

again denied parole in 2012. That conclusion clearly is correct as to the Board’s denial of 

parole in 2008. The District Court did not explain why that circumstance bars Taylor’s 

challenges to the 2012 and 2014 denials of parole as well, but it does. The Board’s 

reliance on the nature of Taylor’s offense was apparent in 2008 when it expressly cited 

that factor in denying parole. Taylor thus knew everything he needed to know to assert 

his challenge at that time. The Board’s “identically phrased” reliance on this factor again 

in 2012 and 2014 was not “a necessary factual predicate to [this] claim” because the 

Board’s reliance on this factor in 2008 “would have been sufficient for [Taylor] to 

formulate his complaint.” Benchoff, 404 F.3d at 818.

Taylor argues that he could not have asserted this claim in 2008 because it is based 

on the Board’s “continual” reliance on the nature of his offense and he could not have 

known that the Board would continue to rely on it until it did so again in 2012. As the 

Board observes, this argument assumes that it was permissible for the Board to rely on 

the nature of Taylor’s offense once in 2008 but not thereafter. Taylor has cited no 

authority supporting such a proposition, and we are aware of none. The Board’s 

continued reliance on this factor also does not make Taylor’s claim timely under a 

continuing violation theory because Taylor was or should have been “aware of the 

[alleged] injury at the time it occurred” in 2008. Montañez v. Sec’y Pa. Dep’t of Corr., 

773 F.3d 472, 481 (3d Cir. 2014) (quotation marks omitted).
Much the same analysis applies to Taylor’s due process and ADA claims to the 

extent that he challenges the Board’s reliance on his prior substance abuse per se. 

Because the Board expressly relied on that factor in 2008, Taylor knew or should have 

known of that alleged injury at that time. See, e.g., Bogovich, 189 F.3d at 1003-04 

(addressing cognizability of similar claim).

Taylor’s due process and ADA challenges to the Board’s denial of parole in 2012 

and 2014, however, also have another aspect. Taylor does not claim merely that the 

Board erred in relying on his past substance abuse per se. Instead, he claims that the 

Board’s reliance on his past substance abuse denied him due process and violated the 

ADA in light of the information he presented to the Board in those specific parole 

applications. 

In particular, Taylor claims to have advised the Board both that the root cause of 

his substance abuse was PTSD and that he will be eligible for PTSD treatment if released 

but cannot obtain such treatment in prison. Taylor claims that he first learned of these 

circumstances in 2009, and he attached documentation supporting that claim to his 

amended complaint.3 Taylor further claims that he presented this information to the 

Board at his next opportunity to apply for parole and that the Board denied him due 

 

3 Taylor attached a September 4, 2009 decision from the Department of Veteran Affairs 

ruling him eligible for PTSD treatment as a veteran’s benefit. The report notes that 

Taylor’s “cocaine and alcohol dependence [is] secondary to PTSD” and that various 

factors including Taylor’s incarceration and “lack of mental health treatment are 

obstacles in his recovery from PTSD.” (ECF No. 16 at 9-10.) Taylor also attached 

correspondence from the Department of Veterans Affairs noting his eligibility for 

benefits in general and suggesting that he might qualify for treatment under the Health 

Care for Re-Entry Veterans Program only if released from prison. (Id. at 11-12.) 
process and violated the ADA by relying on his past substance abuse under these specific 

circumstances.

The District Court did not acknowledge this aspect of Taylor’s claims, and we 

cannot conclude at this stage that they are barred by the statute of limitations. The Board 

argues that they are because Taylor alleges that he learned of the link between his 

substance abuse and PTSD in 2009 but did not file suit until 2012. Taylor, however, 

could not have challenged the Board’s 2008 decision on the basis of information that was 

not before the Board at that time. Taylor submitted this information to the Board at his 

next opportunity to apply for parole, the Board denied that application in 2012, and 

Taylor filed suit shortly thereafter. He later sought to further amend his complaint to 

challenge the Board’s 2014 denial on this basis as well. Thus, it appears that Taylor 

raised these claims within two years of their accrual.

The Board asks us to affirm the dismissal of these claims on two alternate 

grounds, but we decline to do so. First, the Board argues that these claims fail as a matter 

of law because the Board did not actually rely on Taylor’s history of substance abuse in 

denying parole in 2012 and 2014 as he alleges. As the Board observes, the Board’s 2008 

decision expressly states that the Board based its denial in part on Taylor’s “Substance 

Abuse History,” but its 2012 and 2014 decisions do not state that it relied on that factor.

Even assuming that it is appropriate to rely on the 2012 and 2014 Board decisions 

themselves, which Taylor did not attach to his amended complaint, that point is not 

dispositive at the pleading stage. See Thompson v. Davis, 295 F.3d 890, 896 n.3 (9th 

Cir. 2002) (“[W]hile the 1999 Board decision does not disclose the Board’s reliance on 
Thompson’s history of substance abuse, the decision does not affirmatively prove that the 

Board did not” rely on it.). The 2012 and 2014 Board decisions also suggest that the 

Board may indeed have considered Taylor’s past substance abuse because both decisions 

recommend that Taylor “work with [his] counselor to develop a plan for continued . . . 

substance abuse treatment.” Thus, Taylor’s allegation that the Board relied on his history 

of substance abuse is sufficient at the pleading stage.

Second, the Board argues that Taylor’s claims fail because Taylor has named as 

defendants only individual Board members rather than the Board itself. In particular, the 

Board argues that (1) the individual Board members whom Taylor has named and served 

lack the authority to reconsider the denial of parole on their own and (2) only the Board 

itself is a proper defendant on Taylor’s ADA claim. We need not resolve these issues 

because it appears that Taylor could remedy these potential defects by further amending 

his complaint. The District Court is in a better position to address the propriety of further 

amendment if necessary on remand.4

III.

 

4 The Board does not otherwise argue that these claims fail to state a claim on the merits, 

and we decline to address that issue sua sponte and in the first instance. We note that, as 

a matter of substantive due process, the Board may not deny parole “for arbitrary . . . 

reasons.” Block v. Potter, 631 F.2d 233, 236 (3d Cir. 1980). We further note that other 

courts have recognized the potential for ADA claims arising from the denial of parole on 

the basis of an allegedly disabling drug addiction. See, e.g., Bogovich, 189 F.3d at 1003-

04. At the same time, we and other courts have recognized that parole boards generally 

may rely on prisoners’ history of substance abuse when determining their eligibility for 

parole. See Thompson, 295 F.3d at 898 n.4; Coady v. Vaughn, 251 F.3d 480, 483, 487 

(3d Cir. 2001). Because neither the District Court nor the Board has addressed the merits 

of these claims, however, we will leave it for the District Court to do so in the first 

instance if necessary on remand.
For these reasons, we will affirm the District Court’s dismissal of Taylor’s claim 

that the Board denied him due process by relying on the nature of his offense. We also 

will affirm the District Court’s dismissal of Taylor’s claims that the Board denied him 

due process and violated the ADA by relying on his prior substance abuse per se. We 

will vacate the denial of those claims to the extent that they challenge the Board’s alleged 

reliance on this factor in light of the specific information that Taylor provided in the 

parole applications that the Board denied in 2012 and 2014, and we will remand those 

claims for further consideration. Because Taylor’s motion for leave to further amend his 

complaint does not appear futile to that extent and no longer is moot in light of our ruling, 

we will vacate the District Court’s denial of that motion as well.