Michael U. Peterson v. Lt. BUSSARD, Security Lt.

ALD-262 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
NO. 06-4672
________________
MICHAEL U. PETERSON,
Appellant,
v.
Lt. BUSSARD, Security Lt.; KERRI CROSS, Hearing Examiner;
J. SCEKERS, Deputy Supt.; MS. CHAMBERLAIN, Deputy Supt.;
D.J. WAKEFIELD, Supt.; T. WINGARD, Unit Manager;
ROBERT BITNER, Chief Hearing Examiner
____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 05-cv-02416)
District Judge: Honorable Sylvia H. Rambo
_______________________________________
Submitted on Appellant’s Motion for Possible Summary Action
Under Third Circuit LAR 27.4 and I.O.P. 10.6
June 14, 2007
BEFORE: SLOVITER, CHAGARES AND GREENBERG, Circuit Judges
(Filed : June 28, 2007)
_______________________
OPINION
_______________________
PER CURIAM

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1 An inmate on “constructive parole” is “at liberty on parole” from one sentence, but
remains incarcerated serving a separately-imposed sentence. See Cox v. Bd. Of
Probation and Parole, 507 Pa. 614, 619 (1985).
2
Appellant, Michael Peterson, timely appeals from the District Court’s grant
of defendants’ Motion to Dismiss.
Peterson is an inmate at the State Correctional Institution in Frackville,
Pennsylvania, who filed this action under 42 U.S.C. § 1983 alleging violations of his due
process rights in connection to a prison disciplinary proceeding. On May 17, 2005, while
incarcerated at the State Correctional Institution at Greensburg, appellant was found to
have sold contraband steroids to another inmate. As a result, he was sanctioned with 60
days in disciplinary custody, and the Board of Probation and Parole revoked his
constructive parole 1 and imposed nine months of recommit time. His complaint alleged
due process violations because he did not receive written notice of the charges at least 24
hours before the hearing, and he was prevented from calling key witnesses. The District
Court granted defendants’ motion, concluding that appellant had been afforded all due
process to which he was entitled. Appellant filed a Motion for Summary Action with this
Court arguing that the District Court erred in dismissing his complaint and in refusing
him the opportunity to amend.
We exercise jurisdiction pursuant to 28 U.S.C. § 1291, engaging in plenary
review of the District Court’s dismissals under Rule 12(b)(6). See County Concrete
Corp. v. Town of Roxbury, 442 F.3d 159, 163 (3d Cir. 2006). We review the denial of

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leave to amend the complaint for abuse of discretion. See Anderson v. Ayling, 396 F.3d
265, 271 (3d Cir. 2005); In re Adams Golf, Inc. Securities Litig., 381 F.3d 267, 280 n.13
(3d Cir. 2004).
We find that Peterson’s § 1983 claims are barred under Edwards v. Balisok,
520 U.S. 641 (1997). A finding that he was denied the opportunity to prepare his defense
and prevented from calling key witnesses would necessarily imply the invalidity of the
sanctions imposed. Id. at 646-47. Because these sanctions involved the fact and length of
appellant’s confinement, rather than simply the conditions of confinement, § 1983 is
unavailable unless the sanctions have been “reversed, invalidated, or called into question
by a grant of federal habeas corpus relief” or some equivalent state process. Torres v.
Fauver, 292 F.3d 141, 143 (3d Cir. 2002); see also Leamer v. Fauver, 288 F.3d 532, 540-
42 (3d Cir. 2002). Because this bar could not have been overcome by repleading, the
District Court did not abuse its discretion in denying leave to amend as futile.
Accordingly, we will summarily affirm the judgment of the District Court.
Because we affirm on different grounds, we modify the dismissal to be without prejudice
to the refiling of this action should the sanctions relating to the fact and length of
confinement be reversed, invalidated, or otherwise called into question.
3

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