NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 23-1058 __________

DANNY L. HAGGARD, Appellant

v.

HOLLY L. MITKOWSKI, County Employee/Former DOC; CLIFF O'HARA, Director of Professional Responsibility; NORM DEMMING, Former Warden of SCI Dallas; MORGAN C. DAVIS, Eastern District Supervisor State Parole; K. WREN, Scranton District Supervisor State Parole; MR. MULLANY, Parole Officer; K. ULRICH, Parole Officer; JOHN DOE(S), DOC Employee/Official; JANE DOE(S), DOC Employee/Official ____________________________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 1-22-cv-01881) District Judge: Honorable Christopher C. Conner ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) June 1, 2023 Before: KRAUSE, PHIPPS, and SCIRICA, Circuit Judges

(Opinion filed June 20, 2023) ___________

OPINION* ___________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PER CURIAM

Danny Haggard, proceeding pro se, appeals from an order of the United States

District Court for the Middle District of Pennsylvania dismissing his complaint with

prejudice. For the reasons that follow, we will affirm the judgment of the District Court.

Haggard, a former inmate at State Correctional Institution-Retreat, filed a

complaint pursuant to

against multiple employees of the Department of

Corrections (“DOC”) and three parole officers. Haggard sought compensatory and

punitive damages for alleged violations of the Eighth and Fourteenth Amendments,

which included a claim against his parole officers based on a state-created danger theory.

Dkt. No. 1 at 6 & 53-67. His allegations stemmed from an intimate relationship he and

defendant Holly Mitkowski, a DOC employee, maintained during and after his

imprisonment at SCI-Retreat.1

. Haggard sought leave to amend

the complaint and requested the appointment of counsel. Dkt. Nos. 2 & 6.

The District Court sua sponte dismissed Haggard’s complaint with prejudice for

failure to state a claim and denied his motions for leave to amend and for appointment of

counsel. Dkt. No. 8. Haggard filed this timely appeal.

We have jurisdiction under

. On appeal, Haggard challenges the

District Court’s rulings that he failed to state a claim against Mitkowski and his parole

officers.2 C.A. Dkt. No. 12 at 10-37. We exercise plenary review over the District

1 Because we write primarily for the parties, we recite only facts pertinent to our decision. 2 Haggard asserts, without argument or explanation, that he is also appealing the District Court’s denials of his motions to amend and for appointment of counsel. C.A. Dkt. No. 2 Court’s sua sponte dismissal of Haggard’s complaint. Dooley v. Wetzel,

(3d Cir. 2020).

Haggard first argues that the District Court erred in concluding that he failed to

state an Eighth Amendment claim based on sexual contact with Mitkowski while he was

in prison. C.A. Dkt. No. 12 at 10-11. We agree with the District Court that Haggard’s

claims regarding this contact are barred by the statute of limitations. Haggard filed his

§ 1983 complaint more than two years after the applicable statute of limitations expired.

See Wisniewski v. Fisher,

(3d Cir. 2017) (“The statute of limitations

applicable to § 1983 claims in Pennsylvania is two years.”) (citation omitted).

Haggard contends that, because sexual contact with Mitkowski continued after he

was released, the statute of limitations was tolled. However, Haggard does not present a

case that fits within the continuing violation doctrine. See Sameric Corp. of Del., Inc. v.

City of Philadelphia,

(3d Cir. 1998) (providing that, under the

12 at 1. His challenges to those rulings are arguably forfeited. See In re Wettach,

(3d Cir. 2016) (deeming forfeited arguments that were not developed in the appellants’ opening brief). Even if these challenges are not forfeited, we discern no abuse of discretion in the District Court’s denial of the motions. Although Haggard was not required to seek leave to amend his complaint, see Fed. R. Civ. P. 15(a)(1), the District Court properly concluded that a claim against Mitkowski under the Americans with Disabilities Act (“ADA”) would fail, see Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn,

, 107 (2d Cir. 2001) (explaining there is no individual liability for damages under the ADA). As to Haggard’s constitutional claims against two employees of SCI-Dallas related to the treatment of complaints he made via a prison hotline, Dkt. No. 1 at 45-48; Dkt. No. 6 at 9-10, he failed to state any facts that those individuals were at all involved with his complaints. Nor did the District Court abuse its discretion in denying Haggard’s motion for appointment of counsel based on his demonstrated ability to present his arguments and the lack of complexity of the issues involved. See Tabron v. Grace,

(3d Cir. 1993). 3 doctrine, only the last act of the defendant’s continuing conduct need be within the

statutory period) (citation and quotation marks omitted). His claims related to his

incarceration were based on an allegedly abusive power dynamic between a DOC

employee and an inmate engaged in a sexual relationship. Dkt. No. 1 at 52-53

(explaining that Mitkowski exposed him to serious legal and disciplinary consequences

while in prison, coerced him in violation of prison policies, and violated her duty to

protect him as a DOC inmate). When he was released, Haggard knew of his alleged

injury—emotional distress caused by sexual abuse while incarcerated—and could

“choose to sue or forego that remedy.” Barnes v. Am. Tobacco Co.,

, 154

(3d Cir. 1998) (citation omitted). Although Mitkowski and Haggard continued their

relationship after his release, they did so in their personal capacities. Haggard has not

asserted that he was entitled to equitable tolling, and there is no suggestion in the record

that he was prevented from asserting his rights against Mitkowski or that she misled him

about his ability to do so. See Seitzinger v. Reading Hosp. & Med. Ctr.,

,

240 (3d Cir. 1999).

Haggard also challenges the District Court’s ruling that he failed to state a claim

against Mitkowski based on her conduct between his release from prison and the end of

their communication in January 2022. C.A. Dkt. No. 12 at 14-18. To state a valid § 1983

claim, a plaintiff must allege that the defendant acted under color of law in violating his

constitutional rights. See Berg v. County of Allegheny,

(3d Cir.

2000). An individual acts under color of law when she exercises powers on behalf of the

state or performs a function delegated by the state. See Leshko v. Servis,

,

4 339-40 (3d Cir. 2005). But Haggard’s claims against Mitkowski are premised on her

actions as a private person, including, inter alia, calls and texts from her personal cell

phone, a request for a protective order against Haggard in her personal capacity, and a

restriction of Haggard’s ability to see their shared pet. See Dkt. No. 1 at 15-42, 51, 54-

55. Although Haggard asserts that he perceived Mitkowski as exercising power on behalf

of the state, C.A. Dkt. No. 12 at 17, we agree with the District Court that Mitkowski was

not “acting under the color of state law” when those events occurred. Shuman v. Penn

Manor Sch. Dist.,

, 146 (3d Cir. 2005).

Finally, Haggard argues that the District Court erred in concluding that he failed to

state a claim against his parole officers of a state-created danger. C.A. Dkt. No. 12 at 18-

36. In making such claim, Haggard was required to plausibly plead that “the state ‘acted

with a degree of culpability that shocks the conscience.’” Mears v. Connolly,

(3d Cir. 2022) (citation omitted). According to Haggard, while he and

Mitkowski were actively concealing their relationship from them, his parole officers met

with him at the address he provided, fitted him with a GPS tracker after he was

discovered living outside his allowed area, approved his request to change his address,

completed drug screens, and required him to attend drug and alcohol rehabilitation and

other programs. Dkt. No. 1 at 18-20, 29, 33-34, 36. This conduct is routine for parole

officers and does not demonstrate that the parole officers acted with the degree of

culpability required to state a claim of state-created danger.

Accordingly, we will affirm the judgment of the District Court.

5