                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 17-3011
                                      _____________

                                  FRANK E. ANDREW,
                                            Appellant

                                             v.

            TODD BUSKIRK; FRANK LONGENBACH; ROBIN STANLEY
                             ______________

                       Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                              (D.C. Civil No. 5-16-cv-03851)
                      District Judge: Honorable Lawrence F. Stengel
                                     ______________

                    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                     July 10, 2018
                                   ______________

           Before: GREENAWAY, JR., RESTREPO and BIBAS, Circuit Judges.

                              (Opinion Filed: May 29, 2019)
                                    ______________

                                        OPINION*
                                     ______________

RESTREPO, Circuit Judge.




       *
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
      Appellant Frank Andrew claims that several Pennsylvania prison officials violated

his constitutional rights by detaining him past the expiration of his maximum term of

imprisonment. The District Court found that no such over-detention occurred and that the

officials were entitled to summary judgment on Andrew’s claims. While the question of

Andrew’s over-detention has no clear answer under Pennsylvania law, we find that the

defendants are nonetheless entitled to qualified immunity with respect to Andrew’s

claims. We will affirm.

                                            I

      Because we write principally for the parties, we set out the facts only as needed for

the discussion below. From 2010 to 2014, Andrew served several jail sentences in three

Pennsylvania counties for separate state offenses and parole violations. See Andrew v.

Buskirk, No. 16-3851, 2017 WL 3485872, at *1–2 (E.D. Pa. Aug. 14, 2017).

      In September 2010, Andrew was sentenced to a term of 11 ½ to 23 months in

Bucks County Jail. Five months later, he was sentenced to a term of 11 ½ to 23 months in

Northampton County Jail on separate charges with an order that this sentence run

concurrently with the Bucks County sentence. After completing the minimum of his

sentence in Northampton County, Andrew was paroled and sent to Bucks County to




                                            2
complete the minimum of his sentence there. He was paroled one month later, in

September 2011.1

      On June 5, 2012, Andrew was arrested and detained in Bucks County Jail on new

charges. He pled guilty and was sentenced to twelve months of probation. See Notice of

Removal, Dist. Ct. ECF No. 1, at 12. Because Andrew still had pending parole violation

hearings in Bucks and Northampton Counties, he remained detained in Bucks County Jail

even after receiving a sentence of probation.2 Andrew was released in March 2013 after

serving separate parole violation sentences in each county.3

      In December 2013, Andrew again violated parole in Bucks and Northampton

Counties. At his Bucks County parole violation hearing, the judge ordered that sentencing



      1
         Andrew was also sentenced to an undisclosed term of imprisonment in
Montgomery County Jail around the same time that he was sentenced in Bucks and
Northampton Counties. His Montgomery County sentence also ran concurrent to the
other two sentences and would later become the grounds for his recommitment on a
parole violation. However, Andrew’s time served in Montgomery County has no bearing
on the claims before us, so we will not belabor the details.
       2
         Because Andrew was sentenced to a maximum term of less than two years in
each of Bucks and Northampton Counties, his parole violation sentencings fell under the
jurisdiction of the respective county courts rather than the Pennsylvania Board of
Probation and Parole. See 61 Pa. Cons. Stat. § 6132(a)(2)(ii); 42 Pa. Cons. Stat. §
9762(b)(3).
      3
        At his Bucks County parole violation hearing, Andrew was sentenced to serve
the balance of his backtime with credit for time served from June 5, 2012, to January 23,
2013, in addition to two years of probation. See Defs.’ Statement Supp. Summ. J., Dist.
Ct. ECF No. 28-1, at 82. He received credit for time served from June 5, 2012, to January
23, 2013. In Montgomery County, Andrew was sentenced to serve the remainder of his
sentence, with credit for time served from June 5, 2012, to January 18, 2013. In
Northampton County, Andrew was given work release and was to be re-parole after thirty
days. He received credit for time served from February 12, 2013 to March 14, 2013.

                                            3
be deferred for ninety days.4 One week later, at Andrew’s Northampton County parole

violation hearing, the judge revoked his parole and sentenced him to the remainder of the

maximum term of his Northampton sentence. On the sentencing sheet, the judge wrote

“Violator. Serve balance. Eligible for immediate work release. Remanded to NCP.

Concurrent to all other sentences –incl– Bucks Cty.” App. 32. During this period of

incarceration, Andrew unsuccessfully filed multiple grievances, arguing that he was

entitled to credit on his Northampton sentence for the time he spent detained in Bucks

County in 2012. After exhausting the grievance process, he retained an attorney who

procured a new order from the Northampton County sentencing judge awarding Andrew

credit for time served in Bucks County. Andrew was immediately released from

Northampton County Jail upon its receipt of the order.

      After his release, Andrew filed suit against three Northampton County Department

of Corrections officials, asserting that his Northampton sentence was carried out beyond

his 23-month maximum period of incarceration due to the officials’ failure to credit his

sentence with the time he was detained in Bucks County in 2012.5 He alleged two claims:

a violation of his Eighth Amendment right to be free of cruel and unusual punishment




      4
         The record before us is silent as to any subsequent sentences in Bucks County,
but a subsequent sentence would not affect our analysis here as Andrew remained
incarcerated in Northampton County Jail until his re-entry to society.
       5
         Defendant Todd Buskirk was the Warden of Northampton County Jail for the
duration of Andrew’s incarceration. Defendants Frank Longenbach and Robin Stanley
were both Lieutenants in the jail’s Intake Department for the same period.

                                            4
and a violation of his right not to be falsely imprisoned.6 The parties exchanged discovery

and subsequently filed cross-motions for summary judgment. The District Court granted

summary judgment in favor of the Northampton County officials. Andrew appealed.

                                             II

       The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3).

We have jurisdiction over the District Court’s grant of summary judgment to the

defendants under 28 U.S.C. § 1291.7

                                             III

       We review de novo a court’s decision to grant summary judgment. Burns v. Pa.

Dep’t of Corr., 642 F.3d 163, 170 (3d Cir. 2011). We view the facts and draw all

reasonable inferences “in the light most favorable to the nonmoving party,” id. (quoting

Armbruster v. Unisys Corp, 32 F.3d 769, 777 (3d Cir. 1994)), and affirm when there is no

genuine issue of material fact, Fed. R. Civ. P. 56(a). Here, the material facts are

uncontested, and there remains only an issue of law: whether the prison officials were

required to credit Andrew’s June 2012 detention in Bucks County toward his

Northampton County sentence. Andrew argues that because his original Northampton

sentence was ordered to run concurrently with his original Bucks sentence, his time



       6
         Although Andrew does not explicitly allege a violation of 42 U.S.C. § 1983 in
any of his filings, his counsel confirmed to the defendants via telephone that his claims
are being asserted under § 1983. See Notice of Removal, Dist. Ct. ECF No. 1 at 4.
       7
         To the extent that Andrew may appeal the District Court’s denial of his Motion
for Partial Summary Judgment, we do not have jurisdiction. The denial is neither a final
decision nor an exception under the collateral order doctrine. See In re Montgomery
County, 215 F.3d 367, 373-74 (3d. Cir. 2000), cert. denied, 531 U.S. 1126 (2001).
                                              5
served in Northampton County for a parole violation should be credited with his time

detained in Bucks County for a parole violation as well. He further argues that the

defendants’ refusal to credit his Northampton sentence in this manner renders them liable

under 42 U.S.C. § 1983 for violating his constitutional rights. We disagree on both

points. It is not clear that Andrew’s Northampton sentence should have been credited in

the way he suggests, and to the extent that it is not clear, the defendants are entitled to

qualified immunity on his claims.8

                                              A

       It is not immediately apparent from the facts of this case that the Northampton

County Jail officials detained Andrew beyond his maximum period of incarceration.

Andrew’s sentences are governed by Pennsylvania law, which requires the award of

credit for time served under four enumerated scenarios. See 42 Pa. Cons. Stat. § 9760.

Andrew’s theory—that his incarceration in two counties on revocation of parole for

previously concurrent sentences should still be considered concurrent—does not fall into

any of these scenarios. Pennsylvania common law is also silent as to his theory. We have

not identified, and Andrew has not directed us to, any case law that requires, or even

gives discretion to, prison officials to apply credit in one sentence to a separate sentence

that was previously being served concurrently. Rather, we have found the opposite.




       8
        Although the District Court did not reach the issue of qualified immunity in its
opinion, we may affirm its decision “on any grounds supported by the record.” Nicini v.
Morra, 212 F.3d 798, 805 (3d Cir. 2000) (en banc) (citation omitted).
                                               6
       Under Pennsylvania law, when a person is incarcerated on violation of parole, it is

at least arguable that time served on one such sentence does not have to be counted

towards time served for a previously concurrent sentence. Merritt v. Pa. Bd. of Prob. &

Parole, 539 A.2d 511, 512 (Pa. Commw. Ct. 1988), aff’d 574 A.2d 597 (Pa. 1990)

(citations omitted). A sentence for violation of parole “is limited only by the maximum

sentence” that could have been imposed under the original sentence. Commonwealth v.

Presley, 193 A.3d 436, 445 (Pa. Super. Ct. 2018) (citing Commonwealth v. Pasture, 630

107 A.3d 21, 27–28 (Pa. 2014)); see also Pa. R. Crim. P. 708 (governing sentences for

parole violations). Thus, Andrew’s original sentencing order controlled his future parole

violation sentence only to the extent that it limited his maximum term to 23 months. It

did not, and could not, mandate that a future sentencing court must order a parole

violation sentence to run concurrently with future parole violation sentences in other

counties. And contrary to Andrew’s argument, the defendants had no “duty or authority”

to infer any such mandate or “correct Mr. Andrew’s sentence calculation themselves.”

Appellant’s Reply Br. 6.

       Andrew argues in the alternative that the 2014 instruction for his parole revocation

to run “[c]oncurrent to all other sentences –incl– Bucks Cty,” App. 32, should be read as

granting credit for his earlier detention in Bucks County. This reading is not supported by

any case law or the plain language of the instruction. A sentencing instruction of

“concurrent” is not an instruction for credit. Sentencing judges intending to award credit

ordinarily will state so, as we saw in multiple sentencing orders in this case. See



                                              7
discussion, supra note 3. Regardless, we need not become too transfixed on this point, as

all of the defendants are entitled to qualified immunity with regard to Andrew’s claims.

                                               B

        Qualified immunity “protects government officials from liability for civil

damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009). It is available “regardless of whether the

government official’s conduct results from a mistake of law, mistake of fact, or mistake

based on mixed questions of law and fact.” Montanez v. Thompson, 603 F.3d 243, 250

(3d Cir. 2010). We analyze a qualified immunity claim using a two-prong inquiry,9 and

we may exercise our discretion in deciding which prong to address first. Pearson, 555

U.S. at 236. As a general matter, we have found that claims alleging over-detention under

state law are best resolved under the “clearly established” prong, rather than the “alleged

violation” prong. See Egolf v. Witmer, 526 F.3d 104, 110 (3d Cir. 2008) (“[F]ederal

courts do a disservice to state actors who would be induced to rely on a ruling [regarding

an alleged state violation] that might change altogether upon subsequent review by the

state court.”). Accordingly, we turn to that analysis first.

       A right is clearly established when “it would be clear to a reasonable officer that

his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194,


       9
         Under the first prong, we must decide “whether the facts that a plaintiff has
alleged . . . or shown . . . make out a violation of a constitutional right.” Pearson, 555
U.S. at 232. Under the second prong, we must decide “whether the right at issue was
‘clearly established’ at the time of a defendant’s alleged misconduct.” Id.
                                               8
202 (2001) (citation omitted). Because we assess an alleged right in the specific context

of the case, we look to the objective legal reasonableness of the officer’s actions “in light

of the legal rules that were clearly established at the time [the action] was taken.”

Montanez, 603 F.3d at 251 (quoting Pearson, 555 U.S. at 244). In the context of an

Eighth Amendment claim for incarceration without penological justification, which we

face here, a plaintiff must demonstrate three elements to establish a prison official’s

violation of a clearly established right: (1) that the official had knowledge that the

prisoner was or would be subject to “unwarranted punishment”; (2) that the official either

failed to act or took ineffectual action such that his response amounted to deliberate

indifference to the problem; and (3) that there was a causal connection between the

officer’s response to the problem (or lack thereof) and the unjustified detention. Id. at 252

(citing Sample v. Diecks, 885 F.2d 1099, 1110 (3d Cir. 1989)).

       Here, none of the defendants could have known that Andrew was being subject to

unwarranted punishment, as it is not clear under Pennsylvania law that his punishment

was actually unwarranted. See discussion, supra part III.A. Because the defendants did

not have knowledge of a constitutional violation, Andrew is unable to satisfy the first

element of the “clearly established” test. As a result, each the defendants is entitled to

qualified immunity with respect to his claims.

       Even assuming arguendo that Andrew was unconstitutionally detained beyond his

maximum term of incarceration, he still fails to satisfy the “clearly established” test with

respect to each defendant. With respect to Buskirk, Andrew does not allege a single fact

that would establish Buskirk’s knowledge of his sentencing calculations, proper or

                                              9
improper. Therefore, Buskirk is entitled to qualified immunity with respect to Andrew’s

claims on the first element alone. With respect to Longenbach and Stanley, Andrew has

demonstrated their knowledge of his claims, but he has not demonstrated the deliberate

indifference necessary to satisfy the second element of the “clearly established” test.

       Our Court determines whether a prison official acted with deliberate indifference

by looking to “the scope of the official’s duties and the role the official played in the life

of the prison.” Montanez, 603 F.3d at 252 (citation omitted). For over-detention claims,

deliberate indifference is typically shown “in those cases where prison officials were put

on notice and then simply refused to investigate a prisoner’s claim of sentence

miscalculation.” Moore v. Tartler, 986 F.2d 682, 686 (3d Cir. 1993) (citations omitted)

(holding that an official’s misinterpretation of a sentencing order was not deliberate

indifference when that same officer also launched a sentencing investigation that led to a

prisoner’s release); see also Sample, 885 F.2d at 1111 (holding that an official was

deliberately indifferent to a prisoner’s claim by failing to follow relevant procedures, take

remedial action, or inform the prisoner of other action he could take to resolve his

problem).

       Here, the record shows that Longenbach and Stanley, the two officials responsible

for calculating prisoners’ sentences, undertook investigative efforts in response to

Andrew’s over-detention claim. Longenbach then explained to Andrew that his sentence

could not be calculated in the way he claimed based on the court orders the jail had

received. He further informed Andrew that Andrew could obtain an attorney to procure

the documentation necessary to support his sentencing calculation claim, which appeared

                                              10
to be his only available remedy at the time. These efforts do not describe the inaction that

our Court has found typical of deliberate indifference. Rather, the record makes clear that

Andrew is unable to demonstrate the second element of the “clearly established” test with

respect to Longenbach or Stanley. As a result, both of these defendants are entitled to

qualified immunity on Andrew’s claims.

                                            IV

       For the foregoing reasons, we will affirm the judgment of the District Court.




                                            11
