Joseph W. Farmer v. Catherine C. McVey

DLD-326 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-2382
___________
JOSEPH W. FARMER,
Appellant
v.
CATHERINE C. MCVEY; WALTER M. PHILLIPS; JEFFREY BEARD;
WILLIAM WARD; ALLEN CASTOR; BARBARA DESCHER; RICHARD KIPP;
GARY LUCHT; BENJAMIN MARTINEZ; NICHOLAS MULLER; SEAN RYAN;
MICHAEL WEBSTER; JAMES THOMAS; DONALD VAUGHN; DAVID
DIGUGLIELMO; JAMES T. WYNDER, JR.; MICHAEL KLOPOTOSKI
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civ. No. 09-cv-00166)
District Judge: Honorable James F. McClure, Jr.
____________________________________
Submitted for Possible Dismissal Under 28 U.S.C.
§ 1915(e)(2)(B) and Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
September 24, 2009
Before: BARRY, AMBRO and SMITH, Circuit Judges
(Opinion filed: October 19, 2009)
_________
OPINION
_________
PER CURIAM

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Farmer has not alleged the source of these federal requirements, but he appears to be1
referring to the Violent Offenders Incarceration–Truth in Sentencing Act, 42 U.S.C. §
13704, et seq., which imposes requirements that states must meet in order to receive
federal grants for the construction and improvement of prisons. See Porter v. Ray, 461
F.3d 1315, 1321 (11th Cir. 2006).
2
Joseph W. Farmer appeals pro se from the District Court’s order dismissing his
complaint. For the following reasons, we will vacate and remand for further proceedings.
See 3d Cir. LAR 27.4 (2008); 3d Cir. I.O.P. 10.6.
I.
Farmer is a Pennsylvania state prisoner who was convicted of rape and other
crimes in 1982. He filed the complaint at issue here under 42 U.S.C. § 1983 against
numerous Commonwealth defendants, challenging their application of the 1996
amendments to the Pennsylvania Parole Act, 61 Pa. C.S. § 331.1, et seq., and “federal
grant award requirements.” Farmer alleges that application of these provisions to him1
violates his due process rights and the Ex Post Facto Clause of the United States
Constitution because they make it more difficult for him to obtain parole than did the
provisions in force at the time of his conviction.
In particular, Farmer alleges a number of ways in which the provisions restrict the
availability of parole for offenders classified as “violent.” He contends, for example, that
these provisions (1) increased the minimum prison term for violent offenders from fifty to
eighty-five percent of the statutory maximum, (2) require three votes for parole instead of
the two that had been required in the past, and (3) “expanded” the eligibility review

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We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s2
dismissal of the complaint as frivolous for abuse of discretion, see Denton v. Hernandez,
504 U.S. 25, 33-34 (1992), but exercise plenary review over its application of law, see
Deutsch v. United States, 67 F.3d 1080, 1083 (3d Cir. 1995). A complaint is “frivolous”
if it lacks any arguable basis in fact or law. See Denton, 504 U.S. at 31.
3
period by allowing more than one year to elapse between violent offenders’ eligibility
reviews. Farmer alleges both that defendants (acting with “deliberate indifference”)
impermissibly applied these provisions at his prior parole hearings and that these
provisions impermissibly restrict his eligibility for parole in the future. In his complaint,
he requests monetary damages, a declaratory judgment, and an injunction “ordering the
Parole Board and Prison Officials to grant me an immediate parole hearing using
constitutionally proper procedures and policies[.]”
Along with his complaint, Farmer filed a motion for leave to proceed in forma
pauperis. By memorandum and order entered April 13, 2009, the District Court granted
that motion, screened the complaint under 28 U.S.C. § 1915(e)(2), and dismissed it as
frivolous pursuant to § 1915(e)(2)(B)(i). Farmer appeals.2
II.
In deeming Farmer’s complaint frivolous, the District Court did not conclude that
his substantive claims lack arguable merit, and we cannot say they do. To the contrary,
we have held (albeit in habeas cases) that the parole amendments of which Farmer
complains “changed the substantive criteria for parole in Pennsylvania and that a
petitioner who could demonstrate individual disadvantage from retroactive application of

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the 1996 Amendments could prevail on an ex post facto claim.” Parker v. Kelchner, 429
F.3d 58, 64 n.5 (3d Cir. 2005) (citing Richardson v. Pa. Bd. of Prob. and Parole, 423 F.3d
282 (3d Cir. 2005)). Thus, although we express no opinion on the merits of Farmer’s
claims, the substance of those claims has an arguable basis in law.
The District Court, however, determined that Farmer’s claims are not cognizable
under § 1983. The District Court concluded that, under Preiser v. Rodriguez, 411 U.S.
475 (1973), Farmer could bring these claims only by means of a petition for a writ of
habeas corpus because they challenge the fact or duration of his confinement. The
District Court further concluded that, under Heck v. Humphrey, 512 U.S. 477 (1994),
Farmer could not obtain monetary damages because success on his claims would imply
the invalidity of his prior parole proceedings, none of which already has been invalidated.
The District Court accurately stated the foregoing principles of law, but erred in
applying them here. Farmer’s complaint, properly construed, has two aspects. First, he
seeks prospective injunctive relief—i.e., a new parole hearing under the procedures in
place at the time of his conviction. The United States Supreme Court has held that
materially indistinguishable claims may be brought under § 1983. See Wilkinson v.
Dotson, 544 U.S. 74, 78-82 (2005). In that case, two state prisoners brought claims under
§ 1983 alleging that retroactive application of parole guidelines that affected both their
eligibility and suitability for parole violated the Ex Post Facto Clause. Like Farmer, they
sought injunctions requiring new parole hearings that comported with ex post facto

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requirements. See id. at 77. The District Court concluded that they could bring their
claims only by means of habeas petitions, but the Supreme Court, after summarizing its
jurisprudence on this issue, held that the prisoners’ claims were actionable under § 1983.
See id. at 78-82. Accordingly, the District Court erred in determining that this aspect of
the complaint is frivolous.
Second, Farmer raises claims arising from his prior parole proceedings. The
question of whether these claims may be brought under § 1983 is a more difficult one, but
Farmer’s attempt to do so cannot be characterized as frivolous on the face of his existing
complaint. Generally, because Farmer does not allege that his prior parole proceedings
have been invalidated, he may not raise claims arising from those proceedings under §
1983—whether seeking monetary damages or other relief—if “success on the § 1983
claim would necessarily demonstrate the invalidity of the Parole Board’s decision[s].”
Williams v. Consovoy, 453 F.3d 173, 177 (3d Cir. 2006) (citations omitted).
Whether that is so necessarily depends on the precise nature of the challenge. We
have recognized, for example, that challenges to parole hearing procedures, as opposed to
their results, might be actionable under § 1983 if such challenges neither contest the fact
of confinement nor seek speedier release. See Benchoff v. Colleran, 404 F.3d 812, 815
n.4 (3d Cir. 2005) (collecting cases). Challenges to parole procedures are not always
actionable under § 1983, but the nature of the challenge must be examined to determine
whether success necessarily would imply the invalidity of the parole hearing’s result. See

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Edwards v. Balisok, 520 U.S. 641, 646-47 (1997).
In this case, Farmer does not request release from confinement or expressly seek to
overturn the results of any prior parole proceeding. Instead, he appears to challenge, at
least in part, the procedures that were employed during those proceedings. His
allegations, however, do not provide sufficient detail to determine whether his claims are
actionable under § 1983. Farmer has not identified or provided any other details about his
prior parole proceedings. And, although he makes generalized allegations that those
proceedings were tainted by the alleged ex post facto violations described above, he does
not allege any specific error in connection with any specific proceeding. Thus, it is not
possible to determine that success on his challenges necessarily would imply that the
result of any such proceeding is invalid. Under these circumstances, the District Court
should not have determined that this aspect of Farmer’s complaint is frivolous. See
Denton, 504 U.S. at 34. See also Roman v. Jeffes, 904 F.2d 192, 195 n.4 (3d Cir. 1990)
(explaining that dismissal under former § 1915(d) “is appropriate only when the
complaint is truly frivolous and no amendment would cure the defect”).
Accordingly, the judgment of the District Court will be vacated and this matter
remanded for further proceedings consistent with this opinion. Because the District Court
dismissed Farmer’s complaint solely on the mistaken ground that it is frivolous, we
express no opinion on whether it states a claim upon which relief may be granted. If the
District Court, either sua sponte under § 1915(e)(2)(B)(ii) or on motion of a defendant,

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determines that it does not, it should grant Farmer leave to amend unless amendment
would be inequitable or futile. See Phillips v. County of Allegheny, 515 F.3d 224, 245
(3d Cir. 2008).

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