Nelson v. Horn , 138 F. App'x 411 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
6-29-2005
Nelson v. Horn
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-2284
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Recommended Citation
"Nelson v. Horn" (2005). 2005 Decisions. Paper 948.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/948
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 03-2284
________________
ROBERT NELSON,
v.
MARTIN HORN, PA Department of Corrections; WILLIAM F. WARD,
PA Board of Parole; KENNETH KYLER, SCI-Huntingdon; KEN HOLLENBAUGH,
SCI-Huntingdon E Unit
Robert L. Nelson,
Appellant
___________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(M.D. Pa. Civ. No. 02-cv-00725)
District Judge: Honorable Malcolm Muir
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
October 13, 2004
Before: ALITO, MCKEE AND COWEN, CIRCUIT JUDGES
(Filed:June 29, 2005)
_______________________
OPINION
_______________________
PER CURIAM
Robert Nelson, proceeding pro se, appeals an order of the United States District
Court for the Middle District of Pennsylvania dismissing his civil rights action against
Martin Horn, the former Secretary of the Pennsylvania Department of Corrections (the
“DOC”), DOC employees, and William Ward, the Chairman of the Pennsylvania Board
of Probation and Parole (together, the “Commonwealth defendants”).1 We will vacate the
District Court’s order and remand for further proceedings.
Nelson alleges in his complaint that he was denied parole because he refused to
attend the Living Sober Therapeutic Community (“LSTC”) Drug Program because it is
based upon religion and a belief in a higher power. He states that he had the prison’s
recommendation three of the four times he was up for parole, completed all other
programs, and had a good misconduct record. Nelson alleges that a new DOC policy
precluded the prison from supporting him because he refused to attend the LSTC
program, and that the DOC and the Parole Board continued to force him into the program.
Nelson attached to his complaint documents reflecting the parole denials.
Based upon these facts, Nelson claims that Horn and Ward implemented policies
that violated his First Amendment right to freedom of religion, and that the DOC
employees followed these policies. Nelson seeks an order declaring that the
Commonwealth defendants’ actions violated his constitutional rights, and money damages
for his stress and mental anguish.
1
Nelson was a Pennsylvania prisoner when he filed this appeal. It appears that he
may have been released during the pendency of the appeal.
2
The Commonwealth defendants moved to dismiss the complaint on the ground that
Nelson failed to exhaust his administrative remedies before filing suit. The Magistrate
Judge agreed, and recommended granting the motion to dismiss. The Magistrate Judge
further stated that Nelson must seek relief in a habeas action to the extent he seeks to
challenge his conviction and the duration of his sentence, and noted that Nelson may not
recover money damages for stress and mental anguish absent a physical injury.
Nelson filed objections to the Magistrate Judge’s report, in which he conceded that
he failed to exhaust his remedies for his claims against the DOC defendants, but argued
that no such remedies exist for his claims against the Parole Board. In adopting the
Magistrate Judge’s report and granting the motion to dismiss, the District Court also
stated that Nelson must seek habeas relief to the extent he seeks to challenge the duration
of his sentence, and that he must exhaust his First Amendment claim related to the
conditions of his confinement. The District Court also noted that claims based upon all
but one of the Parole Board’s decisions referenced in the complaint are time-barred, and
that the remaining decision was not based on a requirement that Nelson attend a substance
abuse program.
This appeal followed. We exercise plenary review over a district court’s decision
to grant a motion to dismiss. Spruill v. Gillis, 372 F.3d 218, 226 (3d Cir. 2004).
Nelson does not appeal the dismissal of his claims against the DOC defendants for
a failure to exhaust, but argues that he should be able to proceed against the Parole Board
3
because there are no available administrative remedies.2
The Commonwealth defendants also argue that the District Court properly
dismissed Nelson’s claim against the Parole Board because he was required to bring it in
a habeas action. This argument is foreclosed by the Supreme Court’s recent decision in
Wilkinson v. Dotson, 125 S. Ct. 1242 (2005), which addressed whether claims that state
parole procedures are unconstitutional may be brought under § 1983. In holding that such
claims are cognizable, the Supreme Court explained that a § 1983 action is barred if
“success in that action would necessarily demonstrate the invalidity of confinement or its
duration.” Id. at 1248. In Wilkinson, success on the two prisoners’ claims, one
challenging his parole eligibility and the other challenging his parole suitability, did not
mean a shorter stay in prison, but at most a new eligibility review and a new parole
hearing. Id. Likewise, success on Nelson’s claim would not necessarily demonstrate the
invalidity of his confinement or its duration, but would establish that the Parole Board
used improper factors in making its parole determination.3
2
In their brief, the Commonwealth defendants do not dispute that Nelson has no
administrative remedies against the Parole Board, but argue that the DOC, not the Parole
Board, operates the LSTC program. We leave this argument for consideration by the
District Court on remand.
3
Although it appears Nelson was released from prison during the pendency of this
appeal, his claim for damages is not moot. See, e.g., Anyanwutaku v. Moore, 151 F.3d
1053, 1057 (D.C. Cir. 1998). The Magistrate Judge correctly noted that damages for
mental anguish are unavailable. See 42 U.S.C. § 1997e(e). However, § 1997e(e) does
not bar a claim for nominal damages, which need not be alleged in the complaint. Allah
v. Al-Hafeez, 226 F.3d 247, 251 (3d Cir. 2000).
4
On the merits, the District Court properly concluded that Nelson’s claims based
upon parole denials in 1998 and March 1999 are time-barred. Nelson filed his complaint
in September 2001. See Kost v. Kozakiewicz, 1 F.3d 176, 189-90 (3d Cir. 1993) (stating
Pennsylvania’s two-year statute of limitations applies to § 1983 actions). The District
Court, however, erred in dismissing Nelson’s complaint based upon the October 2000
parole denial, which is not time-barred and states a claim for relief. See Kerr v. Farrey,
95 F.3d 472, 479-80 (7 th Cir. 1996) (holding that requiring prisoner to attend drug
program with religious content violates the Establishment Clause).4
Nelson also argues that the District Court erred in failing to address his due
process and retaliation claims based on the Parole Board’s requirement that he participate
in the LSTC program. Nelson raised these claims in a supplement to his complaint. The
District Court construed the supplement as a motion to amend the complaint, and denied
it because Nelson sought release from prison in the supplement, and, as discussed above,
such relief is only available in a habeas action. Under Wilkinson, success on these claims
would not have required Nelson’s immediate release, and he sought other forms of relief
4
In finding that the Parole Board’s October 2000 decision was not based upon
Nelson’s failure to participate in the LSTC program, the District Court decided a factual
issue. The orders denying parole attached to Nelson’s complaint arguably also support
the inference that the October 2000 decision was based upon his failure to participate in
light of a prior order requiring him to do so coupled with the decision in October 2000
that he serve his maximum sentence. It is not clear that Nelson can prove no set of facts
that would entitle him to relief. See Alston v. Parker, 363 F.3d 229, 233 (3d Cir. 2004)
(setting forth standard of review in appeal from Rule 12(b)(6) dismissal).
5
in his initial complaint. Thus, Nelson should be afforded the opportunity to amend his
complaint. See also Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (discussing
elements of similar retaliation claim).5
Accordingly, we will vacate the order of the District Court dismissing Nelson’s
complaint and remand for further proceedings consistent with this opinion.
5
Nelson also raises an ex post facto challenge in his appellate brief. Nelson did not
raise this claim in his complaint or supplement thereto, and his argument is not properly
before the Court. See Harris v. City of Philadelphia, 35 F.3d 840, 845 (3d Cir. 1994)
(stating Court will not consider issues raised for the first time on appeal).
6