Cooke v. Goldstein et al

Filing 17

MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 5/26/11. (ntl)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

JAMES E. COOKE, JR.,
Plaintiff,

v.

Civ. No. 10-893-LPS

AARON GOLDSTEIN, et aI.,
Defendants.

James E. Cooke, Jr., Howard R. Young Correctional Institution, Wilmington, Delaware, Pro Se
Plaintiff.
Ryan Patrick Connell, Deputy Attorney General, Delaware Department of Justice, Wilmington,
Delaware. Counsel for Defendants Aaron Goldstein, Joseph R. Biden, III, Carl C. Danberg, Phil
Morgan, Lt. Williams, and Patrick B. Schwartz.

MEMORANDUM OPINION

May 26, 2011
Wilmington, Delaware

'(~?(fK...

STARK, U.S. District Judge:
I.

INTRODUCTION
Plaintiff James E. Cooke, Jr. ("Plaintiff'), filed this action pursuant to 42 U.S.c. § 1983

alleging violations of his constitutional rights. l Plaintiff, a pretrial detainee, is currently housed
at the Howard R. Young Correctional Institution ("HRYCI") in Wilmington, Delaware. Plaintiff
appears pro se and has been granted leave to proceed in forma pauperis. (0.1.6) The Court
proceeds to review and screen the Complaint pursuant to 28 U.S.C. § 1915 and§ 1915A. 2

II.

BACKGROUND
Plaintiff is housed at the HRYCI, awaiting retrial of criminal charges, following the

reversal of his conviction for rape in the first degree, burglary in the first degree, arson in the first
degree, two counts of murder in the first degree, and the resultant death sentence. Cooke v. State,
977 A.2d 803 (Del. 2009).
Plaintiff raises numerous claims commencing upon his arrival at the HRYCI on April 22,
2010, including his placement in "the hole," excessive force, medical needs, the grievance
procedure, threats by prison personnel, transfer to a different correctional facility, denial of
access to the courts, denial of due process, and opening of his legal mail. He seeks compensatory
damages.

'Pursuant to 42 U.S.C. § 1983, a plaintiff must allege that some person has deprived him
of a federal right, and that the person who caused the deprivation acted under color of state law.
See West v. Atkins, 487 U.S. 42, 48 (1988).
2The Complaint named an additional plaintiff, Richard Iverson ("Iverson"). Because
Cooke's and Iverson's claims were unrelated, a new case was opened for Iverson. The Court
does not consider, and strikes, Iverson's allegations found at paragraph V.3. of the Complaint.
(OJ. 2)
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III.

LEGAL STANDARDS
This Court must dismiss, at the earliest practicable time, certain in forma pauperis and

prisoner actions that are frivolous, malicious, fail to state a claim, or seek monetary relief from a

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defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2) (in forma pauperis

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defendant); 42 U.S.C. § 1997e (prisoner actions brought with respect to prison conditions). The

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Court must accept all factual allegations in a complaint as true and take them in the light most

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actions); 28 U.S.C. § 1915A (actions in which prisoner seeks redress from governmental

favorable to a pro se plaintiff. See Phillips v. County ofAllegheny, 515 F .3d 224, 229 (3d Cir.
2008); Erickson v. Pardus, 551 U.S. 89, 93 (2007). Because Plaintiff proceeds pro se, his
pleading is liberally construed and his Complaint, "however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by lawyers." Erickson, 551 U.S. at 94
(internal quotation marks omitted).
An action is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v.
Williams, 490 U.S. 319, 325 (1989). Under 28 U.S.C. § 1915(e)(2)(B)(i), a court may dismiss a
complaint as frivolous if it is "based on an indisputably meritless legal theory" or a "clearly
baseless" or "fantastic or delusional" factual scenario. Neitzke, 490 at 327-28; Wilson v.
Rackmill, 878 F.2d 772, 774 (3d Cir. 1989; see also Deutsch v. United States, 67 F.3d 1080,
1091-92 (3d Cir. 1995) (holding frivolous a suit alleging that prison officials took inmate's pen
and refused to give it back).
The legal standard for dismissing a complaint for failure to state a claim pursuant to

§ 1915(e)(2)(B)(ii) is identical to the legal standard used when ruling on Rule 12(b)(6) motions.
See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). However, before dismissing a

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complaint or claims for failure to state a claim upon which relief may be granted pursuant to the
screening provisions of 28 U.S.C. § 1915, the Court must grant Plaintiff leave to amend his
complaint, unless amendment would be inequitable or futile. See Grayson v. Mayview State
Hasp., 293 F .3d 103, 114 (3d Cir. 2002).

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Ashcroft v. Iqbal, _U.S._, 129 S.Ct. 1937 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S.

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544 (2007). The assumption of truth is inapplicable to legal conclusions or to "[t]hreadbare

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A well-pleaded complaint must contain more than mere labels and conclusions. See

recitals of the elements of a cause of action supported by mere conclusory statements." Iqbal,
129 S.Ct. at 1949. When determining whether dismissal is appropriate, the Court conducts a
two-part analysis. See Fowler v. UPMC Shadyside, 578 FJd 203,210 (3d Cir. 2009). First, the
factual and legal elements of a claim are separated. See id. The Court must accept all of the
Complaint's well-pleaded facts as true, but may disregard any legal conclusions. See id. at 210­
11.

Second, the Court must determine whether the facts alleged in the Complaint are
sufficient to show that has a "plausible claim for relief." Id. at 211. In other words, the
Complaint must do more than allege Plaintiffs entitlement to relief; rather, it must "show" such
an entitlement with its facts. Id. A claim is facially plausible when its factual content allows the
Court to draw a reasonable inference that the defendant is liable for the misconduct alleged. See
Iqbal, 129 S.Ct. at 1949. The plausibility standard "asks for more than a sheer possibility that a

defendant has acted unlawfully." Id. "Where a complaint pleads facts that are 'merely consistent
with' a defendant's liability, it 'stops short of the line between possibility and plausibility of
'entitlement to relief. '" Id. (quoting Twombly, 550 U.S. at 570).

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IV.

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DISCUSSION

A.

Personal Involvement

Plaintiff names as Defendants Joseph R. Biden, III ("Biden"), Carl C. Danberg
("Danberg"), Carol Jefferson ("Jefferson"), Mr. Crawfford ("Crawfford"), Rodderick L. Johnson
("Johnson"),3 Richard J. Morse ("Morse"), Steve Eichel ("Eichel"), Melissa Lang ("Lang"), Mr.
Shea ("Shea"), and Patrick B. Schwartz ("Schwartz"). The Complaint, however, contains no
allegations against any of these Defendants, and Plaintiff provides no facts to support a claim
against them. "A defendant in a civil rights action must have personal involvement in the alleged
wrongs" to be liable. Sutton v. Rasheed, 323 F.3d 236, 249 (3d Cir. 2003) (internal quotation
marks omitted). Hence, the claims against these Defendants lack an arguable basis in law or in
fact and will be dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(b) and § 1915A(b)(1).4

B.

State Actor

Paragraphs 7 and 13 consist of claims against private defense attorneys Jennifer K.
Aaronson ("Aaronson,,)5 and Patrick Collins ("Collins"). To state a claim under 42 U.S.C.

§ 1983, a plaintiff must allege "the violation of a right secured by the Constitution or laws of the
United States and must show that the alleged deprivation was committed by a person acting
under color of state law." West v. Atkins, 487 U.S. 42,48 (1988). To act under "color of state
law," a defendant must be "clothed with the authority of state law." Id at 49. Aaronson and
Collins are private criminal defense attorneys representing Plaintiff in his criminal case and are

3Misspelled on the court docket as Jjaison.

4Additionally, Morse, Eichel, Lang, and Shea are not State actors.

5Misspelled on the court docket as Aarowson.

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not "clothed with the authority of state law." Reichley v. Pennsylvania Dep 't ofAgric., 427 F.3d
236,244-45 (3d Cir. 2005); see also Eiener v. Calio, 361 F.3d 206, 216-17 (3d Cir. 2004).
Accordingly, Plaintiffs § 1983 claims against Aaronson and Collins have no arguable basis in
law or in fact and will be dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B) and

§ 1915(A)(b)(1).

C.

Prosecutorial Immunity

Paragraphs 1 and 13 refer to Aaron Goldstein ("Goldstein"), a prosecutor and Deputy
Attorney General for the Delaware Department of Justice. Plaintiff alleges that Goldstein gave
Defendant Warden Phil Morgan ("Morgan") an order that classified his placement in "the hole"
with "denial of access." (D.!. 2 at ~ I) Paragraph 13 alleges that Plaintiffs defense counsel
discussed with Goldstein the issue of the confiscation of Plaintiff's legal materials and his
transfer to the James T. Vaughn Correctional Center ("VCC") in Smyrna, Delaware.
It is well established that a state prosecuting attorney is absolutely immune from liability
pursuant to 42 U.S.C. § 1983 when the prosecutor's actions are related to the initiation and
prosecution of a criminal action. See Imbler v. Pachtman, 424 U.S. 409, 431 (1976). The
immunity extends to responsibilities discharged in court, such as the presentation of evidence or
legal argument, as well as selected out-of-court behavior "intimately associated with the judicial
phases" of litigation. "[T]he duties of the prosecutor in his role as advocate for the State involve
actions preliminary to the initiation of prosecution and actions apart from the courtroom." Id at
431 n.33.
Courts confronted with claims challenging a prosecutor's actions must utilize a functional
analysis to determine whether or not the prosecutor acted within his or her "judicial capacity"

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when attempting to apply absolute immunity. See Odd v. Malone, 538 F.3d 202, 207 (3d Cir.
2008). Under the functional approach, a prosecutor enjoys absolute immunity for actions
performed in a judicial or "quasi-judicial" capacity. Id. Therefore, absolute immunity "attaches
to actions intimately associated with the judicial phases of litigation, but not to administrative or
investigatory actions unrelated to initiating and conducting judicial proceedings." ld. (internal
citations omitted). Further, actions that relate to the prosecutor's role as an advocate are
"judicial" actions. See Mancini v. Lester, 630 F.2d 990, 993 (3d Cir. 1980).
Here, Plaintiff alleges that Goldstein delivered a court order to Phelps. This act could be
construed as one requiring advocacy on the part of Goldstein and, therefore, within the realm of
prosecutorial functions. Even if it is not, the allegation does not rise to the level of a
constitutional violation. Similarly, the remaining allegations regarding the confiscation and
return oflegal material and institutional transfer did not violate Plaintiffs constitutional rights.
The claims are frivolous and will be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and

§ 1915A(b)(1).
D.

Excessive Force

Plaintiff is a pretrial detainee awaiting retrial on a capital charge. He was placed in "the
hole" upon his arrival at the HYRCI and wanted to be moved. According to the Complaint, on
May 21, 2010, Plaintiff was kicking his cell door in an effort to speak to correctional officers
about a transfer. He stopped kicking when Defendants G. Smith ("Smith") and A. Harris
("Harris") approached the cell. As Plaintiff was speaking to Defendants Mr. Searles ("Searles")

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and Smith, upon Searles' order, Harris grabbed Plaintiff's genitalia and maced him. 6 Next,
Plaintiff showed Defendant C/O Medine blood in his boxers and spoke to Defendant Lt.
Williams ("Williams") about the incident. While speaking to Williams, Harris threatened to kill
Plaintiff.

CD.I. 2 at ,

3)

Plaintiff complains of a second incident on May 22, 2010, when Williams made contact
with Plaintiff. Williams hit Plaintiffs chest with his shoulders and told Plaintiff that he would
"kill him." (Id. at, 5) Defendant C/O Marty ("Marty") was on the unit when the incident took
place and Plaintiff reported the matter to Sgt. Charles ("Charles"). (ld.)
Excessive force claims for pretrial detainees are analyzed under the Fourteenth
Amendment. See Fuentes v. Wagner, 206 F.3d 335 (3d Cir. 2000); see also Sylvester v. City of
Newark, 120 F. App'x 419,423 (3d Cir. Jan. 14,2005) (not published). Fuentes instructs that

"when a court is called upon to examine the amount of force used on a pretrial detainee for the
purpose of institutional security, the appropriate analysis is ... whether the measure taken
inflicted unnecessary and wanton pain and suffering[, which] depends on whether force was
applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically for
the very purpose of causing harm." Fuentes, 206 F.3d at 347 (internal quotation marks omitted).
Accordingly, the Eighth Amendment cruel and unusual punishments standards found in Whitley
v. Albers, 475 U.S. 312 (1986) and Hudson v. McMillian, 503 U.S. 1 (1992), apply to a pretrial
detainee's excessive force claim arising in the context of a prison disturbance. 7 [d. Prison

6Searles told Plaintiff that, due to his capital case, he "was not going anywhere." (0.1.2
at,3)
A prison disturbance may be a riot or a lesser disruption; for example "whenever guards
use force to keep order." See Hudson, 503 U.S. at 6-7.
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officials are accorded substantial latitude where prison security and the safety of prisoners and
officers is at stake. The infliction of pain in the course of a prison security measure does not
amount to a constitutional violation simply because it may appear in retrospect that the degree of
force authorized or applied for security purposes was unreasonable, and hence unnecessary in the
strict sense. Whitley, 475 U.S. at 219. Therefore, for a pretrial detainee to state an excessive
force claim against a prison official, he must adduce evidence that the force used was applied
"maliciously and sadistically to cause harm" and not "in a good-faith effort to maintain or restore
discipline." Hudson, 503 U.S. at 6.
Liberally construing the Complaint, the Court finds that Plaintiff has adequately alleged
an excessive force/failure to protect claim against Harris, Smith, and Searles with regard to the
May 21,2010 incident. (D.L 2 at ~ 3) The claims against the other individuals Plaintiff spoke to
after-the fact do not implicate the requisite personal involvement on their behalf.
The May 22, 20 I 0 incident does not rise to the level of a constitutional violation.
Although it is not required that Plaintiff show he suffered more than a de minimis injury to
maintain his excessive force claim, see Wilkins v. Gaddy, _U.S'-' 130 S.Ct. 1175,1179-1180
(2010) (noting that notion of significant injury as threshold requirement for stating excessive
force claim was rejected in Hudson, 503 U.S. at 7), the "absence of [a] serious injury"
nevertheless remains relevant in an Eighth Amendment inquiry, Wilkins, 130 S.Ct. at 1179-80
(stating that "[a]n inmate who complains of a 'push or shove' that causes no discernible injury
almost certainly fails to state a valid excessive force claim") (internal quotation marks omitted).
Here, Plaintiff does not allege any injury resulted from the May 22, 2010 occurrence. He merely
indicates that Williams made contact with him. Accordingly, the Court will dismiss the May 22,

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2010 excessive force claim as frivolous pursuant to 28 U.S.c. § 1915(e)(2)(B) and §
1915A(b)(1 ).8

E.

Medical Needs

Plaintiff alleges that following the May 21, 2010 incident, he was denied medical care by
Harris and then by Defendants Sgt. Dimpsey ("Dimpsey), Medine, and the Charge Nurse
("Nurse"). (0.1.2 at ~~ 3, 4) The Nurse who examined Plaintiff did not see the bleeding
condition of which he complained and scheduled Plaintiff to see the physician. On May 28,
2010, Plaintiff was examined by a physician and underwent testing. (Id. at ~ 10)
Plaintiff further alleges that for four decades he has had a foot and thigh condition
resulting from bums that require ointment. He filled out several sick call slips and was seen by
Defendant Nurse Cindy ("Cindy") in late May, June, July, August, and September 2010. The
ointment he requires can be purchased from the commissary. Plaintiff alleges that he is indigent,
and, therefore, he must be provided with the ointment. He complains that he received "wrong
medical care" and needs to see a foot specialist. Plaintiff wrote to Warden Morgan, and Morgan
responded. (0.1.2 at ~ 11)

8Plaintiffs claims of verbal threats are not constitutional violations. (0.1.2 at ~~ 3,5)
Plaintiff also alleges that he was threatened by Defendant C/O Parrelle on September 9,2010.
(Id. at ~ 16) Verbal abuse of a prisoner, even of the lewd variety, is not actionable under 42
U.S.C. § 1983. See Aleem-X v. Westcott 347 F. App'x 731 (3d Cir. Oct. 9,2009) (not published);
see also Murray v. Woodburn, 809 F.Supp. 383, 384 (E.D. Pa. 1993); McBride v. Deer, 240 F.3d
1287, 1291 (10th Cir. 2001) (taunts and threats are not Eighth Amendment violation); Prisoners'
Legal Ass 'n v. Roberson, 822 F. Supp. 185, 189 (D.N.J. 1993) (verbal harassment does not
violate inmate's constitutional rights). Similarly, allegations that prison personnel have used
threatening language and gestures are not cognizable claims under § 1983. See Collins v. Cundy,
603 F.2d 825 (10th Cir. 1979) (explaining defendant laughed at prisoner and threatened to hang
him). Accordingly, the Court will dismiss all claims of verbal threats/abuse as frivolous pursuant
to 28U.S.C. §§ 1915(e)(2)(B)(ii)and 1915A(b)(I).

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A pretrial detainee's claim challenging the conditions of confinement in a state detention
facility is analyzed under the Due Process Clause of the Fourteenth Amendment. See Hubbard v.
Taylor, 399 F.3d 150, 157-58 (3d Cir. 2005). Courts have concluded that the Fourteenth

Amendment affords pretrial detainees protections that are "at least as great as the Eighth
Amendment protections afforded to a convicted prisoner." Natale v. Camden County Corr.
Facility, 318 F.3d 575, 581 (3d Cir. 2003) (internal quotation marks omitted). Hence, when

assessing medical claims by pretrial detainees, courts may apply the deliberate indifference
standard established under the Eighth Amendment, but must view the inquiry in the context of
the Bell v. Wolfish standard, which applies Fourteenth Amendment due process principles and
not the cruel and unusual punishment standard to pretrial detainees. See Hubbard, 399 F.3d at
165-66. The deliberate indifference standard requires a finding of a serious medical need and
acts or omissions by prison officials that indicate deliberate indifference to that need. See Natale,
318 F.3d at 582. A prison official may manifest deliberate indifference by "intentionally denying
or delaying access to medical care." Estelle v. Gamble, 429 U.S. 97, 104-05 (1976).
"[A] prisoner has no right to choose a specific form of medical treatment," so long as the
treatment provided is reasonable. Harrison v. Barkley, 219 F.3d 132, 138-40 (2d Cir. 2000). An
inmate's claims against members of a prison medical department are not viable under § 1983
when the inmate receives continuing care, but believes that more should be done by way of
diagnosis and treatment, or when the prisoner maintains that options available to medical
personnel were not pursued on the inmate's behalf. See Estelle, 429 U.S. at 107. Moreover,
allegations of medical malpractice are not sufficient to establish a Constitutional violation. See

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White v. Napoleon, 897 F.2d 103, 108-09 (3d Cir. 1990); see also Daniels v. Williams, 474 U.S.
327,332-34 (1986) (stating negligence is not compensable as Constitutional deprivation).
Finally, "mere disagreement as to the proper medical treatment" is insufficient to state a
constitutional violation. Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004).
Even when reading the Complaint in the light most favorable to Plaintiff, he fails to state
an actionable constitutional claim against Defendants for deliberate indifference to a serious
medical need. Rather, the Complaint alleges that Plaintiff received treatment for his medical
conditions, albeit treatment that was not to Plaintiffs liking.
With regard to Warden Morgan, prison administrators are not deliberately indifferent
"simply because they failed to respond directly to the medical complaints of a prisoner who was
already being treated by the prison doctor." Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir.
1993). The Third Circuit clarified that "[i]f a prisoner is under the care of medical experts ... a
non-medical prison official will generally be justified in believing that the prisoner is in capable
hands." Spruill, 372 F.3d at 236. "[A]bsent a reason to believe (or actual knowledge) that prison
doctors or their assistants are mistreating (or not treating) a prisoner, a non-medical prison
official ... will not be chargeable with the Eighth Amendment scienter requirement of deliberate
indifference." Id It is evident from Plaintiff's allegations that he received medical treatment.
His communication with Warden Morgan leaves no doubt that he was receiving medical care,
even though Plaintiff deems it unsatisfactory.
The allegations fall far short of alleging a violation of Plaintiffs constitutional rights with
regard to his medical needs. Therefore, the Court will dismiss the medical needs claims as
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(I).

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F.

Grievances

Plaintiff alleges that on May 26, 2010, he was interviewed by Defendant Capt. Berggur
("Berggur"), who handled grievances Plaintiffhad filed against other correctional officers. (D.l.
2 at ~ 6) He alleges that during an interview with Internal Affairs held in Berggur's office on
June 3, 2010, he was told that the grievances he wrote about Williams and submitted following
the May 21, 2010 macing incident were missing or disappeared. Plaintiff was told that he may,
or may not, see them again. (Id at ~ 8) Finally, he alleges that he did not receive a response to
his grievance regarding missing legal materials. (Id at ~ 14)
To the extent that Plaintiff bases his claims upon his dissatisfaction with the grievance
procedure or denial of his grievances, his claims fail because an inmate does not have a
constitutionally protected right to a grievance procedure. See Caldwell v. Beard, 324 F. App'x
186, 189 (3d Cir. Apr. 27, 2009) (not published) (citing Flick v. Alba, 932 F.2d 728, 729 (8th Cir.
1991». Anyway, it is clear from the allegations that Plaintiff was allowed to submit grievances.
Plaintiff cannot maintain a constitutional claim based upon comments made to him, or his
perception that his grievances were not properly processed or investigated, or that the grievance
process is inadequate. Therefore, the Court will dismiss the grievance claims as frivolous
pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(l).

G.

Transfer

In early June 2010, Plaintiff spoke to Berggur who told him that Warden Morgan was not
pleased with Plaintiff s submissions of complaints about correctional officers. Plaintiff asked
Berggur why he had not been transferred to the VCC and was told that a transfer was not
required merely because Plaintiff s attorney had requested one. Plaintiff advised Berggur that

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Warden Morgan had told Plaintiffs attorney that Plaintiff was being transferred to the VCC
because Plaintiffs life was in jeopardy. (D.1. 2 at ~ 9)
Plaintiffs claim fails to the extent he alleges that Defendants are required to transfer him
to the VCC. The Delaware Supreme Court has recognized that prison officials have discretion to
house inmates at the facilities the officials choose. See Walls v. Taylor, 856 A.2d 1067,2004
WL 906550 (Del. 2004) (table) (citing Brathwaite v. State, No. 169,2003 (Del. Dec. 29, 2003».
Furthermore, the United States Supreme Court has held that an inmate has no due process right
to be incarcerated in a particular institution, whether it be inside the state of conviction or outside
that state. See Olim v. Wakinekona, 461 U.S. 238, 251(1983).
Based upon the foregoing, Plaintiffs right to transfer claim will be dismissed as frivolous
pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(I).

H.

Due Process

Plaintiff alleges that he was classified for placement in "the hole" by order of Warden
Morgan even though he had no infractions or assaultive behavior. After writing to Defendants
Deputy Warden Emmett ("Emmett") and Major Parker ("Parker"), Plaintiff was told by Parker
that he would be housed there for two weeks. Later, Plaintiff was told he was housed in "the
hole" because of his capital case. (D.L 2 at ~~ 1,2,3)
Plaintiff further alleges that on August 3,2010, Defendant Lt. A. Pedrick ("Pedrick")
conspired with Warden Morgan and Parker to find Plaintiff guilty of an infraction (apparently
related to the macing incident) without conducting an investigation. When Plaintiff asked
Pedrick ifhe was going to do anything about the incident, Pedrick replied, "I find you guilty."

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When Plaintiff stated that he intended to appeal, Pedrick responded that he denied the appeal and
still finds Plaintiff guilty. (D.I. 2 at ~ 12)
Pretrial detainees have a liberty interest in being free from punishment prior to conviction
under the Due Process Clause. See Bell v. Wolfish, 441 U.S. 520, 535-36 (1979). "Absent a
showing of an expressed intent to punish on the part of detention facility officials, that
determination [Le., whether there is a violation] generally will tum on whether an alternative
purpose to which [the restriction] may rationally be connected is assignable for it, and whether it
appears excessive in relation to the alternative purpose assigned [to it]." ld at 538. Therefore,
"if a restriction or condition is not reasonably related to a legitimate goal

if it is arbitrary or

purposeless - a court permissibly may infer that the purpose of the governmental action is
punishment that may not constitutionally be inflicted upon detainees qua detainees." ld at 539.
In the absence of substantial evidence in the record to indicate that the officials have exaggerated
their response, courts should ordinarily defer to the expert judgment of corrections officials. See

id at 540 n.23.
Assessing allegations of unconstitutional punishment typically includes both objective
and subjective components. See Stevenson v. Carroll, 495 F.3d 62,68 (3d Cir. 2007). The
objective component requires an inquiry into whether "the deprivation [was] sufficiently serious"
and the subjective component asks whether "the officials act[ed] with a sufficiently culpable state
ofmind[.]" ld
With respect to the procedural due process claims, the procedures required by Wolffv.
McDonnell, 418 U.S. (1974), apply if the restraint on liberty is imposed for disciplinary reasons;

if, instead, the restraint is for "administrative" purposes, the procedures outlined in Hewitt v.

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Helms, 459 U.S. 460 (1983), are all that is required. See Stevenson, 495 F.3d at 70. In Wolff,
418 U.S. at 556, the Supreme Court held that prisoners must be accorded due process before
prison authorities may deprive them of state created liberty interests. A prison disciplinary
hearing satisfies the Due Process Clause if the inmate is provided with: (1) written notice of the
charges and not less than 24 hours to marshal the facts and prepare a defense for an appearance at
the disciplinary hearing; (2) a written statement by the fact finder as to the evidence relied on and
the reasons for the disciplinary action; and (3) an opportunity "to call witnesses and present
documentary evidence in his defense when to do so will not be unduly hazardous to institutional
safety or correctional goals." Id. at 563-71. Under Hewitt, pretrial detainees who are transferred
into more restrictive housing for administrative purposes must be provided an explanation of the
reason for their transfer as well as an opportunity to respond. See Stevenson, 495 F.3d at 70.
Liberally construing the Complaint, Plaintiff has adequately alleged due process claims
against Warden Morgan and Parker with regard to his alleged placement in "the hole" due to his
being charged with a capital offense, and against Pedrick with regard to his actions during the
August 3, 2010 disciplinary hearing. (D.1. 2 at ~~ 1-3, 12) To the extent Plaintiff alleges
conspiracy, the claim fails, as Plaintiffs allegations consist of legal conclusions without
supporting facts and fail to meeting the pleading requirements of Iqbal and Twombly.
For the above reasons, the conspiracy claim will be dismissed as frivolous pursuant to 28
U.S.c. § 1915(e)(2)(B) and § 1915A(b)(I). Plaintiff may proceed with his due process claims as
discussed hereinabove.

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I.

Access to the Courts

Plaintiff alleges that he was told by Berggur that the only way he may have access to the
law library is if he is a sentenced inmate. (D.I. 2 at,-r 9) He further alleges that legal materials
were taken from his cell on August 25,2010 and returned to him on September 22, 2010, but
several documents were missing. (D.I. 2 at,-r 13) Finally, Plaintiff alleges that his legal mail has
been opened before he receives it and is resealed with Scotch tape. (D.L 2 at,-r 15)
Prisoners must be allowed "adequate, effective and meaningful" access to the courts.
Bounds v. Smith, 430 U.S. 817,822 (1977) (holding that prisons must give inmates access to law
libraries or direct legal assistance). "Many courts have found a cause of action for violation of
the right of access stated where it was alleged that prison officials confiscated and/or destroyed
legal materials." Zilich v. Lucht, 981 F .2d 694, 695 (3d Cir. 1992). However, a violation of the
First Amendment right of access to the courts is only established where a litigant shows that he
was actually injured by the alleged denial of access. The actual injury requirement is a
constitutional prerequisite to suit. See Lewis v. Casey, 518 U.S. 343, 351 (1996); Christopher v.
Harbury, 536 U.S. 403, 415 (2002) (explaining that constitutional right of access is "ancillary to
the underlying claim, without which a plaintiff cannot have suffered injury by being shut out of
court"). An actual injury is shown only where a nonfrivolous, arguable claim is lost. See
Christopher, 536 U.S. at 415.
The record does not reflect a violation of Plaintiff s right to access the courts or actual
injury as a result of any alleged denial. The Court takes judicial notice that Plaintiff is
represented by appointed counsel in his criminal case. As to his civil cases, it is evident from his
numerous filings, in this and other cases he has filed in this Court, that he has been able to

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prosecute his civil lawsuits. Indeed, Plaintiff has filed eleven cases in this Court since August

2010.
For the above reasons, the Court will dismiss the access to the court claims as frivolous
pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(l).

V.

CONCLUSION
For the reasons discussed, Plaintiff may proceed with: (l) the excessive force claim found

at paragraph three of the Complaint against Searles, Harris, and Smith; and (2) the due process
claims found at paragraphs one, two, three, and twelve of the Complaint against Warden Morgan,
Parker, and Pedrick. The Court will dismiss the remaining Defendants and claims as frivolous
pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(1).
An appropriate Order follows.

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