Andre Fain v. Evelyn Morgan

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 07-1508
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ANDRE FAIN,
Appellant
v.
EVELYN MORGAN; JUDY M. GAGLIANO;
RUBY WASHINGTON; MR. COLAZZO;
THOMAS RENAHAN
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 06-cv-04404 )
District Judge: Honorable Joel A. Pisano
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Submitted Pursuant to Third Circuit LAR 34.1(a)
November 15, 2007
Before: SLOVITER, BARRY and WEIS, Circuit Judges
(Opinion filed: November 28, 2007)
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OPINION
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PER CURIAM
Appellant, Andre Fain, proceeding pro se, appeals from the District Court’s orders
dismissing his complaint pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A and denying his

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motion for reconsideration pursuant to Fed. R. Civ. P. 59(e). For the reasons that follow,
we will vacate the District Court’s orders and remand for further proceedings.
Fain filed a civil rights complaint pursuant to 42 U.S.C. § 1983, alleging that
Appellees violated his due process rights by fabricating evidence and falsifying
documents for use at his parole eligibility hearings, by relying on the fabricated evidence
in denying his parole, and by intentionally concealing the fact that such evidence was
used at his eligibility hearings. The District Court sua sponte dismissed Fain’s complaint
pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A for failure to state a claim upon which
relief can be granted. Fain filed a motion for reconsideration, which the District Court
also denied. Fain appeals.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Our review of
a district court’s sua sponte dismissal of a complaint pursuant to § 1915(e)(2) is plenary.
Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000).
The District Court construed Fain’s complaint as asserting that his due process
rights were violated at his parole revocation hearing and concluded that Fain must raise
his claims in a habeas petition because any challenge to the revocation of his parole
would necessarily imply the invalidity of his confinement. See Heck v. Humphrey, 512
U.S. 477 (1994). Fain asserts, however, because his complaint is challenging the
constitutionality of his parole review hearings, not the validity of his parole revocation
hearing, his claims do not necessarily imply the invalidity of his confinement. We agree.

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Even if the claims in Fain’s complaint were unclear, the District Court should have1
informed Fain that he had leave to amend his complaint, especially in light of Fain’s
motion for reconsideration. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d
Cir. 2002).
An inmate may file a § 1983 action for procedural challenges if the action would
not necessarily spell immediate or speedier release for the prisoner. Wilkinson v. Dotson,
544 U.S. 74, 81 (2005). Fain’s complaint is challenging the validity of his parole review
hearings, not his parole revocation hearing. In his motion for reconsideration, Fain
reiterates that, contrary to the District Court’s interpretation, his complaint does not
challenge the validity of his parole revocation hearing, which he concedes was proper.1
Additionally, in his motion for reconsideration, Fain concedes that, even without the
allegedly fabricated evidence, the Parole Review Board still could have denied him parole
at his review hearing. We agree. The Parole Review Board bases its decision to grant or
deny parole on numerous factors. See N.J. A.D.C. 10A:71-3.11. Accordingly, Fain’s
complaint does not necessarily imply the invalidity of his confinement and may be filed
pursuant to § 1983. See Wilkinson, 544 U.S. at 81.
For the foregoing reason, we will vacate the District Court’s orders and remand for
further proceedings. Fain’s motion for sanctions is denied. See Martin v. Brown, 63 F.3d
1252, 1265 (3d Cir. 1995).
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