and 03-1710 ERNEST TRASLAVINA v. Michael J. Gaines

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 01-3872 and 03-1710
ERNEST TRASLAVINA,
Appellant in No. 01-3872
v.
MICHAEL J. GAINES; U.S. PAROLE COMMISSION;
SCOTT KUBIC; CAROL J. COFFEY; DOUGLAS GOLDRING and
MICHAEL A. ZENK,
Appellees in No. 01-3872
_______________
ERNEST TRASLAVINA,
Appellant in No. 03-1710
v.
NANCY BAILEY, WARDEN,
Appellee in 03-1710
________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Civ. Nos. 99-cv-01970 & 00-cv-05737 )
District Judges: A. Richard Caputo and Stephen M. Orlofsky
____________
Argued November 3, 2003
Before: McKEE, SMITH and WEIS, Circuit Judges.
(Filed: January 21, 2004)
____________

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OPINION
Stephen R. Baker, Esquire (ARGUED)
Jerold S. Solovy, Esquire
Barry Levenstam, Esquire
Jenner & Block, LLC
One IBM Plaza
Chicago, Illinois 60611
Attorneys for Appellant Ernest Traslavina
Kate L. Mershimer, Esquire (ARGUED)
Assistant United States Attorney
Tomas A. Marino, Esquire
Untied States Attorney
United States Attorney’s Office
Middle District of Pennsylvania
228 Walnut Street, 2nd Floor
P.O. Box 11754
Harrisburg, PA 17108-1754
Attorneys for Appellees in No. 01-3872
Irene Dowdy, Esquire (ARGUED)
Assistant United States Attorney
Christopher J. Christie, Esquire
United States Attorney
402 East State Street, Room 430
Trenton, New Jersey 08608
Attorneys for Appellees in No. 03-1710
_______________
WEIS, Circuit Judge.
After due consideration of the issues raised by the plaintiff prisoner, we

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1 Applicable only to prisoners like the plaintiff who were sentenced before
November 1, 1987.
3
conclude that the record supports his contention that he was misled by prison officials to
waive parole consideration. Accordingly, in view of the time constraints present here, we
directed the Parole Commission to grant a hearing nunc pro tunc, which was held on
November 24, 2003. This opinion explains the reason for our order, and addresses other
issues raised by plaintiff.
Plaintiff is a federal prison inmate who was convicted on two counts of
drug related charges in the United States District Court for the District of Nevada in 1990.
He was sentenced to 15 years imprisonment on count I and 15 years imprisonment on
count II to run consecutively. Count I was a parolable offense, but count II was non-
parolable by virtue of the Anti-Drug Abuse Act of 1986. Plaintiff began serving his
sentences on August 17, 1990.
Despite the differing provisions as to parole, the Bureau of Prisons (“BOP”)
“aggregated” the sentences; that is, it treated them as a total sentence of 30 years. This
arrangement has favorable aspects for an inmate in terms of allowable “good time
credits.”
Under 18 U.S.C. § 4205(a)1 a prisoner becomes eligible for parole
consideration after serving one-third of his sentence. Section 4206(d) provides that
unless a prisoner has seriously violated institutional rules, he should be granted

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2 The Parole Commission has also adopted guidelines that provide that, in
certain circumstances, including some apparently applicable to the plaintiff, parole would
not be granted until at least 100-months incarceration had been served. See 28 C.F.R.
2.20.
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mandatory parole at the expiration of two-thirds of his sentence.2
Plaintiff contends that, from the onset of his sentence, prison officials had
unequivocally indicated to him that his release date, calculated as two-thirds of his
aggregate sentence and contingent upon good time credits, would be in November 1999.
Based on this information, plaintiff says he “waived” parole consideration in 1994, the
one-third eligibility date for his first, parolable offense. In deciding to do so, he assumed
that a successful hearing would parole him to the term on count II with a future release in
1999.
BOP officials had, in fact, documented the November 1999 projected
mandatory release date; a progress report of November 21, 1997 listed “projected release
11-19-99 two-thirds,” and a similar notation was made in a report of January 7, 1999. In
a section of the latter report entitled “Release Planning,” there appears the following:
“Mr. Traslavina has a two-thirds release date of September 19, 1999. Upon release from
incarceration, he anticipates residing with his mother in Forest Hills, New York. . . [H]e
has been encouraged to participate in institutional release preparation program.”
BOP officials even interviewed plaintiff’s family members in preparation
for his release in November 1999. Despite these favorable actions, plaintiff was notified

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on October 26, 1999 that he would not be imminently released into the community, but
rather would be “paroled” to the consecutive 15-year non-parolable sentence. Thus, he
would remain in custody.
A sentence monitoring entry of August 2, 1999, addressed to “any
reviewing authority,” described the process which led to this decision as follows:
“Prisoner was eligible in 1994 (one-third of the first 15 years) to be paroled ‘on paper’ to
the next 15-year non-parolable sentence. Had he been paroled, his statutory release date
of 2009 would drop to 2004, but the two-third date on the aggregate would still stay in
effect for November 19, 1999. Reason is that the 10-year cap stops any sentence from
extending parole eligibility for more than 10 years.”
On January 11, 2000, the Parole Commission performed a record review
and issued plaintiff a mandatory parole certificate for the first sentence nunc pro tunc to
November 19, 1999. As a result of the BOP action, the plaintiff’s release date was
extended to 2009. However, on September 21, 2001, the United States District Court for
the District of Nevada reduced the sentence on count II to ten years, thus accelerating the
current release date to December 7, 2004.
While confined in Allenwood, Pennsylvania, plaintiff filed a pro se Bivens
complaint in the Middle District of Pennsylvania against the Parole Commission, its
chairman and other federal employees. He asked that the Parole Commission be required
to perform a record review, reinstate his release date of November 19, 1999, and pay

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compensatory and punitive damages for the time he had been incarcerated beyond
November 19, 1999.
The District Court, relying on Heck v. Humphrey, 512 U.S. 477 (1994),
entered summary judgment in favor of the defendants on the Bivens theory.
Alternatively, treating the plaintiff’s pleadings as a habeas corpus action, the Court found
that plaintiff had failed to establish a basis for relief, other than a review on the record
and a nunc pro tunc Parole Certificate which the Board had granted on January 11, 2000.
Having been transferred from Allenwood to Ft. Dix, New Jersey, plaintiff
filed a second pro se complaint, this time challenging his continued incarceration under
habeas corpus and naming the warden of Ft. Dix as the defendant. Specifically, plaintiff
asked that his sentence be de-aggregated, and asserted further that because his waiver of a
hearing in 1994 had not been intelligent, he was entitled to a parole hearing nunc pro tunc
as of November 18, 1994. He also contended that he was not given good-time credits to
which he was entitled and that prisoners in similar circumstances had been granted an
earlier release.
The District Court denied the claim for a parole hearing nunc pro tunc
because the issue had not been adequately presented through the administrative
procedures of the BOP. The Court denied the constitutional claims of equal protection
and Eighth Amendment violations on the same rationale.

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3 The notice of appeal from the Middle District of Pennsylvania was timely
filed on October 5, 2001, well within the 60-day period after the District Court judgment.
In the New Jersey action, though, various motions for reconsideration followed in the six
months after the District Court dismissed the case on June 20, 2002. These motions were
denied by the court on January 27, 2003, with the notice of appeal following on March
11, 2003. Even though Plaintiff’s motions for reconsideration were not filed within 10-
days of the original judgment, the district court disposed of them as if they were timely,
and the government did not object to their untimeliness. Thus, the 60-day period for
filing of a notice of appeal did not begin to run until January 27, 2003, making the
Plaintiff’s notice of appeal timely. See Inglese v. Warden, United States Penitentiary, 687
F.2d 362, 363 (11th Cir. 1982) (citing Thompson v. INS, 375 U.S. 384, 385 (1964) (per
curium))
4 We appointed counsel for plaintiff on his appeal and express our thanks
for the able presentation of this case to the Court.
7
Plaintiff filed a notice of appeal from both District Court decisions, which
were later consolidated by order of this Court.3 We assert appellate jurisdiction under 28
U.S.C. 1291 over Plaintiff’s appeal from the dismissal of his Bivens action, and under 28
U.S.C. 2253 over Plaintiff’s appeal from the dismissal of his habeas action.4
The release date computations in this case have been inconsistent and
complicated. The confusion in the litigation aspect has also been somewhat unusual.
Many of the problems have been generated by the plaintiff’s pro se efforts and by the
modification of the original sentence on count II. We have briefly summarized the
extensive litigation conducted in both district courts, without detailing the various
pleadings and motions. After carefully reviewing the various claims and contentions, we
arrive at the following conclusions:

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1. The BOP properly concluded that, after parole on the sentence for count
I, the plaintiff was required to serve the non-parolable sentence on count II. To have
done otherwise would have violated the sentencing court’s explicit order that the non-
parolable term be served consecutively to the parolable sentence.
2. The BOP in its administrative capacity has re-aggregated the two
sentences as plaintiff requested. That action, however, has affected the calculations for
release by only two days. The aggregation issue, therefore, is no longer before the court.
3. The plaintiff’s equal protection claim is meritless. Although plaintiff did
not present this issue in the first step, he did submit it in steps two and three of the
administrative review, and it has not been ruled upon. Although the BOP has a policy of
not reviewing issues that have not been raised in all three steps, we are persuaded that in
these circumstances the pro se plaintiff adequately exhausted the administrative process.
Nevertheless, on the record here, we are not persuaded that the plaintiff has provided us
sufficient proof to establish his claim.
Our analysis "begins with the basic principle that a [litigant] who alleges an
equal protection violation has the burden of proving the existence of purposeful
discrimination." McClesky v. Kemp, 481 U.S. 279, 292 (1987). Because Plaintiff has
not pleaded that he is a member of a suspect class, see e.g. Pryor v. Brennan, 914 F.2d
921, 923 (7th Cir. 1990)(noting that prisoners are not a suspect class), or that a
fundamental right has been infringed, see e.g. Mayner v. Callahan, 873 F.2d 1300, 1302

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(9th Cir. 1990)(stating that “parole consideration is not a fundamental right deserving
higher scrutiny”), the law imposes the rather modest requirement that the government not
treat similarly situated individuals differently without a rational basis. See Cleburne v.
Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985).
Although plaintiff has introduced evidence of his differential treatment
from that of another inmate, the record is devoid of any indication that such individual is
“similarly situated” or received a preferential application of parole regulations. We
conclude, therefore, that in the absence of evidence of purposeful discrimination against
Plaintiff, his equal protection claim is meritless.
4. Plaintiff’s waiver of parole consideration in 1994 was unintelligent,
thereby requiring the Parole Board to consider his case in a hearing nunc pro tunc to that
date.
As noted earlier, the plaintiff contends that over a period of years he was
assured by prison employees of his mandatory release in 1999. As a result, he asserts that
he did not ask for parole consideration in 1994, when he first became eligible at one-third
of his sentence on count I. Had he requested a hearing and received favorable
consideration at that point, the non-parolable sentence on count II would have started to
run in 1994, rather than in 1999 when the mandatory parole at two-thirds of count I
became effective.

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The New Jersey District Court concluded that although the plaintiff had
filed administrative appeals, he had not adequately presented his contention that his
“waiver” of a Parole Board hearing in 1994 was ineffective. We take a different view.
In completing his BP-10 form appealing the institutional administrative
denial of his claim for release, the plaintiff wrote: “[h]ad I been informed in 1990 that my
two fifteen-year sentences would be de-aggregated, I would have seen the Parole Board in
1995. At no time did anyone tell me that upon reaching the two-third date, the sentence
would be split ... I was constantly informed at every unit team that I would be released in
November 1999....” The regional administrative board did not address this contention
other than to state that the projected mandatory release date was December 5, 2004.
Plaintiff then appealed that decision to the Central Office of the BOP in
Washington, D.C. using form BP-Dir-11. In addition to a claim for additional good-time
credits, plaintiff asked for aggregation “or in the alternative release from my first sentence
nunc pro tunc to 11-18-94 when I was first eligible for parole and no one took the time to
explain to me that these sentences were to be de-aggregated upon reaching the release
date of 11-19-99.”
The Central Office denied the request for additional good-time credits and
granted the request for re-aggregation. However, no mention was made of the request for
nunc pro tunc computation as of November 19, 1994.

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The New Jersey District Court pointed out that the waiver argument had not
been presented at the institutional level and, therefore, the administrative process had not
been completed. That ruling, however, overlooked the fact that plaintiff had raised the
waiver issue in his appeal to the Regional Level in form BP-DIR-10 and, although
somewhat vaguely, in the appeal to the Central Office.
The affidavit of Aaron Nixon, an inmate systems specialist in the BOP
Washington, D.C. office, stated, “[i]ssues which are raised and addressed in the early
administrative remedies (which are commonly referred to as a BP-9 at the institution
level) and a BP-10 (at the regional level) are addressed by the Central Office . ..” He
continued, “[t]he waiver issue was not addressed at the institution level . . . [T]he
references were viewed as a statement regarding, and support for his requested relief that
the sentences be re-aggregated, not as a separate issue to be independently addressed.”
We believe that this narrow reading of the plaintiff’s pro se appeal was unduly restrictive
and overlooked the clearly expressed waiver claim in BP-10.
We note that the form BP-11 submitted to the Central Office required that
copies of the completed BP-9 and BP-10 be attached. Consequently, it appears that the
waiver claim was submitted to the final administrative decision-maker. On this record,
we conclude that administrative remedies to the waiver issue were exhausted. Therefore,
the merits of the claim should have been addressed by the District Court.

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Ordinarily, we would remand to the District Court to conduct the necessary
proceedings, make the appropriate factual findings and arrive at conclusions of law.
However, there were special circumstances here which counseled immediate action on
our part. If plaintiff was correct in his contention that he should have been paroled in
1994 or some earlier date before November 1999, it may have been that he should have
been released before the scheduled date of December 4, 2004.
Remand to the District Court for its resolution of the issues could have
resulted in delay and extended the plaintiff’s incarceration beyond the proper date.
Because that possibility existed, at the conclusion of oral argument we decided to address
the issue immediately and directed the Parole Board to provide a hearing within thirty
days nunc pro tunc to November 1994.
The record before us is sparse as to whether plaintiff was misled.
Nevertheless, the documents prepared by the BOP corroborated his assertions to some
extent. It is clear that the staff at Allenwood in 1999 expected that the plaintiff was to be
released to the community in November of that year. The BOP began taking the required
steps for that action in early 1999. The progress report prepared two years earlier (in
1997) also projected a release into the community in 1999.
The plaintiff’s contention that he was told by staff members in 1992 that it
would be futile to apply for parole at the one-third mark was not challenged by the
defendants. The form waiving parole consideration at the June 1992 session of the Parole

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Board was initialed by the plaintiff at the appropriate place. Significantly, at that location
also appears the handwriting “witnessed by [an unintelligible signature] 3-16-92.”
Apparently, that unknown signatory was an employee of the BOP and permits an
inference that plaintiff was being counseled by prison employees at that time. It is
unlikely that plaintiff would otherwise waive parole consideration.
Of course, it would have been most helpful if we had been presented with
an affidavit of the BOP employee who witnessed the waiver, setting forth the
circumstances. The BOP would have been in a position to supply such evidence in the
years that this litigation has been pending in the two district courts. That omission was
also a factor in our determination that the just result here was an order directing the Parole
Commission to have a hearing nunc pro tunc.
The Parole Board has now conducted that hearing and, based upon their
review of plaintiff’s record, denied him parole as of 1994. The plaintiff’s request for
relief on this claim has therefore been met.
5. We conclude also that the judgment in favor of the defendants in the
Bivens action in the Middle District of Pennsylvania was properly entered. However, we
reach that result by a different path than that used by the District Judge.
The plaintiff claimed damages for unlawful incarceration after November
19, 1999. As noted earlier, the BOP properly required service of the 15-year sentence on
count II instead of release to the community. Adhering to this sequence, the plaintiff’s

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projected release date as of November 19, 1999 would be 2009. The Middle District
entered judgment for the defendants on July 9, 2001, when the plaintiff was serving his
count II consecutive sentence. At that point, the plaintiff had not been incarcerated
illegally even if his waiver argument had prevailed. Therefore, as of the date judgment
was entered for defendants, the plaintiff had suffered no damages and, therefore, had no
Bivens claim.
It was not until September 21, 2001 when the District Court in Nevada
reduced the sentence on count II to ten years, that the waiver claim assumed some
potential viability. At that point, the release date was accelerated to 2004, and, as noted
above, a successful parole hearing might have moved that date even earlier. However,
the outcome of the nunc pro tunc hearing preserves the 2004 projected release date, and
precludes any damages to support a Bivens action now. Any other relief to which
plaintiff may have been entitled was included in the New Jersey action, which we have
consolidated with the Middle District case.
Accordingly, we will affirm the judgment of the Middle District of
Pennsylvania entered July 9, 2001, and affirm the judgment of the District of New Jersey
entered July 21, 2002. Because the appropriate relief has been granted as to the waiver
claim, plaintiff has no remaining cognizable claims.

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______________________________
TO THE CLERK:
Please file the foregoing Opinion.
/s/ Joseph F. Weis
United States Circuit Judge

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