Mbewe v. Unknown Names et al
Filing
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MEMORANDUM. Signed by Judge Alexander Williams, Jr on 11/27/2012. (c/m 11/27/12 rs)(rss, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
FRANCIS C. MBEWE, # 360-922
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Plaintiff
v.
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Civil Action No. AW-12-cv-3138
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UNKNOWN NAMES, et al.
Defendants
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MEMORANDUM
In this lengthy complaint filed pursuant to 42 U.S.C. § 1983, Francis C. Mbewe, an
inmate at the Maryland Correctional Institution-Hagerstown (“MCI-H”) alleges that when he
was in custody at the Montgomery County Department of Correction and Rehabilitation,
corrections staff refused to send his legal mail and his criminal appeal was untimely filed as a
result, and 2) his personal property, including various legal documents were lost by corrections
officials there and at MCI-H. 1 Additionally, he complains: 3) he is banned from the law library
at MCI-H; 4) a case manager at MCI-H wrongfully terminated a telephone call while Mbewe
was speaking with his attorney; 4) MCI-H officers harass him and told “the former kitchen
Clerk” that Mbewe was a “snitch.” ECF No. 1 at 10, ¶ 11; and 5); MCI-H staff failed to protect
him from harm when he was assaulted on July 10, 2012, by unknown assailants (ECF No. 1, at
11-12 ¶ 11). As relief, he requests transfer to the Jessup region, declaratory relief, termination
of the “library ban,” compensatory damages of $200,000 against each Defendant, and other
relief.
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The Montgomery County Department of Correction and Rehabilitation facility is operated by Montgomery
County, Maryland. MCI-H is operated by the Maryland Department of Public Safety and Correctional Services.
Plaintiff’s litany of claims arose at different times and at different facilities. For this
reason, the Court deems it necessary to bifurcate the Complaint. Plaintiff’s denial of access to the
courts claim for improper mail handling at the Montgomery County facility will be opened as a
new case, Mbewe v. Unknown Named Mail Room Clerks at the Montgomery County Department
of Correction and Rehabilitation and Captain David, Civil Action No. AW-12-3344. Plaintiff
will be granted twenty-eight days to supplement his Complaint in the new case by separate
Order. Plaintiff’s claim that MCI-H officials failed to protect him from harm by other inmates
will proceed and Defendants shall be directed to file a response in the instant case. Plaintiff’s
claims for: 1) loss of property; 2) denial of access to the courts for restricting law library use; and
3) interrupting a telephone call between Plaintiff and his attorney will be dismissed for reasons to
follow.
A. Preliminary Screening
Pursuant to 28 U.S.C. § 1915A the court screens cases in which prisoners seek redress
from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.
§ 1915A (a). The court is obligated to identify cognizable claims or dismiss a complaint, or any
portion of a complaint, if it is “frivolous, malicious, or fails to state a claim upon which relief can
be granted,” or “seeks monetary relief from a defendant who is immune from such relief.” 28
U.S.C. § 1915A(b). Mindful that Plaintiff is a self-represented litigant, the court has construed
his complaint liberally. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978).
B. Claims
To state a cause of action under § 1983, a plaintiff must establish that he has been
deprived of rights guaranteed by the Constitution or laws of the United States and that this
deprivation resulted from conduct committed by a person acting under color of state law. See
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West v. Atkins, 487 U.S. 42 (1988). As a preliminary matter, Plaintiff cannot maintain his action
against MCI-H and MCDCR Mail Room since neither is a “person” acting under color of state
law and subject to suit under 42 U.S.C. § 1983. See e.g. See Allison v. California Adult
Authority., 419 F.2d 822, 823 (9th Cir.1969) (California Adult Authority and San Quentin Prison
not “person[s]” subject to suit under 42 U.S.C. § 1983); Preval v. Reno, 57 F.Supp.2d 307, 310
(E.D.Va.1999) (ruling jail is not a ‘person,’ and therefore not amenable to suit under 42 U.S.C.
§ 1983.”), aff'd in part and vacated in part on other grounds, No. 99-6950, 2000 WL 20591 (4th
Cir. 2000). Accordingly, MCI-H and the MCDCR Mail Room will be dismissed as defendants.
1. Property Loss
Insofar as Plaintiff raises claims concerning loss of property, he has failed to raise a claim
cognizable in a § 1983 action. Deprivations of personal property as alleged here do not offend
due process if due process is satisfied by adequate post-deprivation state remedies. See Parratt v.
Taylor, 451 U.S. 527, 543 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S.
327 (1986). Furthermore, failure of officials to take due care is not insufficient to rise to the level
of a constitutional violation. See Davidson v. Cannon, 474 U.S. 344, 347–48 (1986). Section
1983 vindicates federal rights, not tort claims for which there are adequate state law remedies.
See Wright v. Collins, 766 F.2d 841, 849 (4th Cir.1985) (citing Tucker v. Duncan, 499 F.2d 963,
965 n. 1 (4th Cir.1974)). The right to seek damages and injunctive relief in Maryland courts
constitutes an adequate post deprivation remedy.2
For these reasons, Plaintiff’s loss of property
claims shall be dismissed.3
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Relief may be sought by way of the inmate grievance procedure and in the Maryland state courts. This court
expresses no opinion as to the merits of such claims.
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Insofar as Plaintiff contends that he needed missing papers to file a reply to the State’s response to his federal
Petition for Writ of Habeas Corpus, he has filed an adequate reply in that case. ECF No. 1, Exhibit B; see Mbewe v.
Webb, Civil Action No. AW-12-1632 (D. Md).
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2. Denial of Access to the Courts
a. Law Library
Plaintiff’s claim that he is “banned” from the law library at MCI-H is directly
contradicted by the attachments he has filed in this case. Specifically, the Warden’s response to
his Administrative Remedy Procedure Request on this issue states Plaintiff may use the library to
prepare for court dates. ECF No. 1, Exhibit D. Plaintiff was found guilty of a rule violation for
stealing a portion of a library book, and as a result, has limited library access. ECF No. 1, Exhibit
D. Notably, Plaintiff states he does not dispute his rule violation conviction. See id.
Additionally, Plaintiff fails to state a federal claim. The constitutional right of access to
the courts includes the derivative right of meaningful assistance by “providing prisoners with
adequate law libraries or adequate assistance from persons trained in the law.” Bounds v. Smith,
430 U.S. 817, 828 (1977). This right is not absolute, and reasonable restrictions may be placed
on law library use to insure the orderly operation of the institution as long as those limits do not
interfere with inmates' access to the courts. See, e.g. Strickler v. Waters, 989 F.2d 1375, 1387
(4th Cir. 1993); Magee v. Waters, 810 F.2d 451, 453 (4th Cir. 1987); A prisoner must suffer an
actual injury to have standing to state a claim. See Lewis v. Casey, 518 U.S. 343, 351 (1996),
Hause v. Vaught, 993 F. 2d 1079, 1084-85 (4th Cir. 1993). Plaintiff does not allege the law
library restrictions caused actual harm; for example, he does not assert he was prevented from
meeting deadlines or otherwise prejudiced in any pending litigation. Accordingly, this claim will
be dismissed. Defendant Ms. Stevens, MCI-H Law Librarian will be dismissed as a party to this
action
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b. Phone Call
Mbewe complains on that September 21, 2010, he was on the telephone with his attorney
and his case manager, Mr. Wach, terminated the call. He asserts this action denied his right of
access to the courts. See Bounds, 430 U.S. at 817. Plaintiff states he was trying to explain to his
attorney about his lost documents. Plaintiff does not claim to have suffered prejudice as a result
of the action, although he indicates generally that counsel was preparing for a court hearing.
ECF No. 1 at 9, 15 ¶ 29.
A prisoner “has no right to unlimited telephone use.” Washington v. Reno, 35 F.3d 1093,
1100 (6th Cir. 1994) (quoting Benzel v. Grammer, 869 F.2d 1105, 1108 (8th Cir.1989)).
Telephone access is “subject to rational limitations in the face of legitimate security interests of
the penal institution.” Id. (quoting Strandberg v. City of Helena, 791 F.2d 744, 747 (9th
Cir.1986. In addition, actual injury is not shown by every frustrated legal claim. Lewis, 518
U.S. at 354. Prisoners are not guaranteed the ability to litigate every imaginable claim they can
perceive, but they are entitled to access to the tools necessary “in order to attack their sentences,
directly or collaterally, and in order to challenge the conditions of their confinement.” Id. at 354.
Absent specific allegation of harm, Plaintiff has failed to state a claim of constitutional
magnitude and this claim will be dismissed. Mr. Wach will be dismissed as a defendant in the
case.
3. Failure to Protect
Plaintiff’s claim that prison officials called him a snitch and failed to protect him from
harm from his fellow inmates will proceed for a response. A separate Order follows.
November 27, 2012
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/s/
Alexander Williams, Jr.
United States District Judge
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