NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 20-1099 _____________

MARK TINGEY, Appellant

v.

PROBATION OFFICER DAGE GARDNER; CAITLIN MCLAUGHLIN, Supervising Probation Officer; JOHN R. TUTTLE, Chairman Board of Probation and Parole; EDWARD L. BURKE, Member Board of Probation and Parole; LESILE M. GREY, Member Board of Probation and Parole; GRAIG R. MCKAY, Member Board of Probation and Parole; MICHAEL L. GREEN, Member Board of Probation and Parole; JEFFREY R. IMBODEN, Member Board of Probation and Parole; MICHAEL POTTEIGER, Member Board of Probation and Parole

On Appeal from the United States District Court for the Eastern District of Pennsylvania District Court No. 2-17-cv-00827 District Judge: The Honorable Jan E. DuBois

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) September 21, 2020

Before: SMITH, Chief Judge, McKEE, and JORDAN, Circuit Judges

(Filed: September 22, 2020) _____________________

OPINION * _____________________

SMITH, Chief Judge.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. A Utah state court sentenced Mark Tingey to 300 days in jail and three years of

probation for possessing child pornography. After Tingey was released from jail, and

after he promised not to view pornography while on probation, the court allowed him to

serve that probation, and be supervised, in Philadelphia so that he could be with his wife.

But six months into Tingey’s probation, agents found signs of porn on his computer. So

Pennsylvania probation officer Dage Gardner requested Tingey report to his parole

officer as a result of violating the terms of his probation.

Tingey admitted the violation and relinquished his right to a hearing. He served

two months in a halfway house for the violation.

Despite his earlier admission, Tingey now contends there was no porn on his

computer so that Gardner lacked probable cause to arrest him. He also claims that

Gardner coerced him into admitting the violation, so his two-month detention shocks the

conscience. He sued under

, bringing a false imprisonment claim and a

substantive due process claim against Gardner and his supervisor, plus a supervisory

liability claim against the supervisor.

As the District Court correctly concluded, 1 all three claims fail.

*

1 The District Court exercised jurisdiction under

and 1367, awarding Gardner and his supervisor summary judgment under Federal Rule of Civil Procedure 56. See No. 17-827,

(E.D. Pa. Dec. 13, 2019). We have jurisdiction over Tingey’s timely appeal under

, and review the District Court’s judgment de novo. See Weitzner v. Sanofi Pasteur Inc.,

(3d Cir. 2018). 2 First, Tingey’s false imprisonment claim runs aground at two places. For starters,

Tingey’s complaint alleges only the intentional tort of false imprisonment under

Pennsylvania law. See App. 15 ¶ 40 (alleging “Defendants maliciously, intentionally,

recklessly and/or willfully caused the false arrest and imprisonment of the plaintiff . . . in

violation of state law” but never mentioning the U.S. Constitution or the Fourth

Amendment (emphasis added)). Yet Pennsylvania has not waived its sovereign immunity

from intentional torts against state officers like Gardner. See Kull v. Guisse,

(Pa. Commw. Ct. 2013).

And even if we read Tingey’s complaint to allege a parallel Fourth Amendment

violation, it would smack into Heck v. Humphrey’s favorable-termination rule. See

(1994) (“[I]n order to recover damages for allegedly unconstitutional

conviction or imprisonment . . . a § 1983 plaintiff must prove that the conviction or

sentence has been reversed on direct appeal, expunged by executive order, declared

invalid by a state tribunal authorized to make such determination, or called into question

by a federal court’s issuance of a writ of habeas corpus . . . .”). In other words, because

Tingey has not successfully challenged the underlying probation violation, he cannot

bring a Fourth Amendment claim. See also Williams v. Consovoy,

(3d Cir. 2006) (holding Heck precluded a parolee’s § 1983 claim alleging his parole

officer lacked probable cause to seize him for a parole violation because the parolee

hadn’t successfully challenged the parole violation).

* *

3 Second, his substantive due process claim fails three times over. For one, Tingey

cabins his substantive due process claim to his halfway-house detention after admitting

the probation violation. So any liability for events during that detention would fall to the

halfway house—not to Gardner, who lacked personal involvement with Tingey’s

detention. See Evancho v. Fisher,

(3d Cir. 2005) (reiterating that

individual defendants must be personally involved in the alleged wrongdoing to face civil

rights liability). Strike one.

What’s more, even if we accept Gardner as the proper defendant, what allegedly

happened here—two months of halfway-house detention after admitting a probation

violation—hardly shocks the conscience. See County of Sacramento v. Lewis,

(1998) (noting that “the substantive component of the Due Process Clause is

violated by executive action only when it ‘can properly be characterized as . . .

conscience shocking’” and that conduct “[]justifiable by any government interest” is not

conscience-shocking (quoting Collins v. City of Harker Heights,

(1992))). Strike two.

And at all events, Gardner’s substantive due process claim crashes into the more-

specific-provision rule. See United States v. Lanier,

, 272 n.7 (1997) (“[I]f a

constitutional claim is covered by a specific constitutional provision, such as the Fourth

or Eighth Amendment, the claim must be analyzed under the standard appropriate to that

specific provision, not under the rubric of substantive due process.”). Tingey’s due

process claim characterizes his halfway-house detention as “arbitrary,” “violat[ing] the

decency of civilized conduct,” “malicious,” and “deliberate[ly] indifferen[t] to [his] right 4 to liberty and well being.” App. 16 ¶¶ 44–47. But those characterizations could just as

easily support an Eighth Amendment claim. See U.S. Const. amend. VIII. (prohibiting

cruel and unusual punishments). So because Tingey’s substantive due process claim

could be repackaged under a more specific constitutional provision, it is “not cognizable

under the Due Process Clause.” DeLade v. Cargan, No. 19-1908,

, *4,

__ F.3d __ (3d Cir. Aug. 25, 2020). Strike three.

* * *

Finally, Tingey’s supervisory liability claim doesn’t even make it to the starting

gate. His opening brief devotes just a single paragraph (seven lines, fifty-eight words) to

the issue, citing no authority and including no substantive argument besides a conclusory

“[f]or the above stated reasons” sentence. Appellant Br. 40; see also Reply Br. (failing to

mention supervisory liability at all). That “passing reference” does “not suffice to bring

th[is] issue before this court.” Laborers’ Int’l Union of N. Am. v. Foster Wheeler Energy

Corp.,

(3d Cir. 1994) (quoting Simmons v. City of Philadelphia,

(3d Cir. 1991)).

And even if we excused that “abandon[ment] and waive[r],” Ghana v. Holland,

(3d Cir. 2000) (quoting Kost v. Kozakiewicz,

(3df Cir.

1993)), as the District Court correctly observed, because Tingey suffered no

constitutional injury, there can be no supervisory liability. See

, at *6

(citing A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr.,

, 586 (3d Cir.

2004)).

* * * * 5 We will affirm.

6