DRAKE v. MUNIAK et al

Filing 5

OPINION. Signed by Judge Robert B. Kugler on 4/24/2014. (bdk, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
KEITH HASSON DRAKE,
:
:
Plaintiff,
:
:
v.
:
:
ROSELLEN G. MUNIAK, et al.,
:
:
Defendants.
:
_________________________________________ :

Civ. No. 13-3868 (RBK) (KMW)
OPINION

ROBERT B. KUGLER, U.S.D.J.
I.

INTRODUCTION

Plaintiff is a state prisoner incarcerated at the South Woods State Prison in Bridgeton,
New Jersey. He is proceeding pro se with a civil rights complaint filed pursuant to 42 U.S.C. §
1983. Plaintiff’s application to proceed in forma pauperis will be granted based on the
information contained therein. Thus, the Clerk will be ordered to file the complaint.
At this time, the Court must review the complaint to determine whether it should be
dismissed as frivolous or malicious, for failure to state a claim upon which relief may be granted,
or because it seeks monetary relief from a defendant who is immune from suit. For the following
reasons, the complaint will be dismissed. However, plaintiff shall be given leave to file an
amended complaint.
II.

BACKGROUND

The allegations of the complaint will be construed as true for purposes of this screening.
Plaintiff names the following individuals as defendants in this case: (1) Rosellen G. Muniak –
Law Librarian South Woods State Prison; (2) Sergeant M. Sheppard – South Woods State
Prison; (3) Lieutenant “John Doe” – South Woods State Prison; (4) Christopher Holmes –
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Warden South Woods State Prison; (5) Greg Lanoza – Assistant Administrator South Woods
State Prison; (6) David Metelow – Education Supervisor South Woods State Prison; and (7) Greg
Lanigan – Commissioner of the New Jersey Department of Corrections. Plaintiff seeks monetary
damages from each defendant.
A. Allegations Against Defendants Muniak, Sheppard and Doe
Plaintiff raises similar factual allegations against defendants Muniak, Sheppard and Doe.
First, plaintiff claims that these defendants violated his constitutional rights by reading and
inspecting his legal materials. He relies on the fact that the defendants stated on a disciplinary
report that they reviewed data from a disk. Plaintiff claims that these three defendants also
conspired to deprive him of all of his legal materials by writing and issuing a disciplinary charge.
Next, plaintiff alleges that these three defendants not only read his legal materials but that
they also confiscated his legal materials. Plaintiff states that the defendants confiscated a disc
that contained legal petitions addressed to the Essex County Superior Court to redress
grievances. By confiscating this material, plaintiff alleges he was unable to petition the courts
for a redress of grievances. Plaintiff also mentions that his post-conviction relief petition was
denied on August 31, 2012. By confiscating this material, plaintiff states that he had to do his
legal research and writing all over again. Plaintiff also alleges that the confiscation of his legal
materials affected his ability to use the law library. Thus, plaintiff alleges that confiscating his
legal materials deprived him of access to the courts.
Plaintiff also contends that these three defendants deprived him of assisting other inmates
with their legal matters. Indeed, as an example, plaintiff notes that his confiscated disc also
contained the legal materials of other prisoners.

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Plaintiff also claims that defendants Muniask, Sheppard and Doe deprived him of using
the photocopying service by confiscating his legal materials.
Plaintiff further states that the three defendants have violated his rights by not informing
him of the rules and procedures of the South Woods State Prison. Specifically, plaintiff alleges
he was not informed as to the rules and procedures concerning personal computers/word
processors.
Finally, plaintiff alleges that these three defendants are liable to plaintiff pursuant to 42
U.S.C. §§ 1983, 1985 and 1986.
B. Allegations Against Holmes
Plaintiff alleges that he wrote to Warden Holmes on November 9, 2012 that his rights
were being violated at South Woods State Prison with respect to his legal materials being
confiscated. Holmes responded to plaintiff on November 15, 2012, and instructed plaintiff that
he needed to use the inmate remedy system to pursue this issue.
Plaintiff claims that Holmes failed to intervene to correct the unconstitutional actions of
Muniak, Sheppard, Lonoza, Metelow and Doe, whom he supervises. Plaintiff claims that
Holmes is liable pursuant to 42 U.S.C. §§ 1983, 1985 and 1986.
C. Allegations Against Lanoza
Plaintiff asserts that he wrote to several New Jersey Department of Corrections’
employees on December 19, 2012 concerning that his rights were being violated at the South
Woods State Prison. He further claims that Lanoza failed to intervene to stop the
unconstitutional actions of defendants, Muniak, Sheppard, Metelow and Doe, whom he
supervises. He alleges that Lanoza is liable to him pursuant to 42 U.S.C. §§ 1983, 1985 and
1986.

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D. Allegations Against Metelow
Plaintiff alleges that he wrote to Metelow on February 21, 2013 to notify him that his
rights were being violated at the South Woods State Prison. Plaintiff requested that Metelow
instruct Muniak to comply with affording him his constitutional rights concerning his legal
materials being confiscated. Metelow wrote back to plaintiff on March 13, 2013, and stated that
the information that plaintiff submitted needed to be placed on the inmate remedy form.
Plaintiff claims that Metelow failed to intervene to correct the unconstitutional actions of
Muniak, whom he supervises. Plaintiff asserts that Metelow’s inaction caused him harm as his
legal materials being prepared for an upcoming court proceeding were confiscated in violation of
his constitutional rights.
E. Allegations Against Lanigan
Plaintiff wrote to Lanigan on November 28, 2012 to notify him that his rights were being
violated at the South Woods State Prison concerning his legal materials being confiscated.
Plaintiff claims that Lanigan failed to intervene to correct the unconstitutional actions of the
defendants that he supervises as the Commissioner of the New Jersey Department of Corrections.
Plaintiff claims that Lanigan’s inaction cause him harm as legal materials he had prepared for
upcoming legal proceedings were confiscated.
III.

STANDARD OF REVIEW

A. Standard for Sua Sponte Dismissal
Per the Prison Litigation Reform Act, Pub. L. No. 104-134, §§ 801-810, 110 Stat. 132166 to 1321-77 (Apr. 26, 1996) (“PLRA”), district courts must review complaints in those civil
actions in which a prisoner is proceeding in forma pauperis, see 28 U.S.C. § 1915(e)(2)(B),
seeks redress against a governmental employee or entity, see 28 U.S.C. § 1915A(b), or brings a

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claim with respect to prison conditions, see 28 U.S.C. § 1997e. The PLRA directs district courts
to sua sponte dismiss any claim that is frivolous, is malicious, fails to state a claim upon which
relief may be granted, or seeks monetary relief from a defendant who is immune from such
relief.
According to the Supreme Court’s decision in Iqbal, “a pleading that offers ‘labels or
conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” 556
U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive sua
sponte screening for failure to state a claim 1, the complaint must allege “sufficient factual
matter” to show that the claim is facially plausible. Fowler v. UPMC Shadyside, 578 F.3d 203,
210 (3d Cir. 2009) (citation omitted). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Belmont v. MB Inv. Partners, Inc., 708 F.3d 470, 483 n.17 (3d Cir.
2012) (quoting Iqbal, 556 U.S. at 678). Moreover, while pro se pleadings are liberally
construed, “pro se litigants still must allege sufficient facts in their complaints to support a
claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation omitted)
(emphasis added).
B. Section 1983 Actions
A plaintiff may have a cause of action under 42 U.S.C. § 1983 for certain violations of
his constitutional rights. Section 1983 provides in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
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“The legal standard for dismissing a complaint for failure to state a claim pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6).” Schreane v. Seana, 506 F. App’x 120, 122 (3d Cir. 2012) (per
curiam) (citing Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)); Mitchell v. Beard, 492 F.
App’x 230, 232 (3d Cir. 2012) (per curiam) (discussing 28 U.S.C. § 1997e(c)(1)); Courteau v.
United States, 287 F. App’x 159, 162 (3d Cir. 2008) (discussing 28 U.S.C. § 1915A(b)).
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District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper
proceeding for redress, except that in any action brought against a
judicial officer for an act or omission taken in such officer’s
judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was
unavailable.
Thus, to state a claim for relief under § 1983, a plaintiff must allege, first, the violation of a right
secured by the Constitution or laws of the United States, and second, that the alleged deprivation
was committed or caused by a person acting under color of state law. See Harvey v. Plains Twp.
Police Dep’t, 635 F.3d 606, 609 (3d Cir. 2011) (citations omitted); see also West v. Atkins, 487
U.S. 42, 48 (1988).
IV.

DISCUSSION

A. Claims Against Defendants Rosellen G. Muniak, Sergeant M. Sheppard and Lieutenant
John Doe
As previously described, plaintiff raises several claims against defendants Muniak and
Sheppard as well as an unnamed John Doe Lieutenant. Each of his claims are considered in turn.
i.

Reading Legal Materials Claim

Plaintiff first alleges that defendants Muniak, Sheppard and Doe are liable under the First
Amendment for reading his legal materials. A plaintiff may state a First Amendment claim
against defendants who read his legal materials if he alleges that there was a pattern or practice
of opening and reading his legal materials outside of his presence. See Schreane v. Holt, 482 F.
App’x 684, 676-77 (3d Cir. 2012) (per curiam) (“Prisoners may establish a violation of the First
Amendment without establishing actual injury where there is a pattern and practice of opening
properly marked incoming legal mail outside the prisoner’s presence.”) (citing Jones v. Brown,

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461 F.3d 353, 359 (3d Cir. 2006)); see also Thompson v. Hayman, No. 09-1833, 2011 WL
2652185, at *5 (D.N.J. July 6, 2011) (same).
Plaintiff does not allege that the defendants have engaged in a pattern or practice of
reading his legal materials. Instead, the complaint alleges that his legal material were read and
confiscated once. Furthermore, the complaint does not allege that this solo incident was due to
an improper motive. Therefore, plaintiff fails to state that his First Amendment rights were
violated because his legal materials were purportedly read by defendants Muniak, Sheppard
and/or Doe. Accord Ortiz v. Prison Bd. Members, No. 08-2126, 2011 WL 776195, at *4 (M.D.
Pa. Feb. 28, 2011) (finding amended complaint failed to state First Amendment claim where
there was no assertion that mail was opened outside of his presence pursuant to any pattern,
practice or policy); Hale v. Pennsylvania Dep’t of Corr., No. 07-0345, 2010 WL 3791833, at *3
(M.D. Pa. Sept. 16, 2010) (“Isolated incidents of opening legal mail outside of an inmate’s
presence, without any evidence of improper motive, is nothing more than an assertion of
negligence, and is insufficient to establish a constitutional violation.”) (citations omitted).
Accordingly, this claim will be dismissed without prejudice for failure to state a claim upon
which relief can be granted.
ii.

Confiscation of Legal Materials Claim

Plaintiff next raises several allegations related to the confiscation of his legal materials.
More specifically, plaintiff alleges that the defendants confiscated a disc containing legal
petitions addressed to the Essex County Superior Courts seeking to redress grievances. He
further alleges that the confiscation also deprived him of the right to participate in the use of the
law library reference materials.

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Plaintiff argues that his First and Fourteenth Amendment rights were violated by being
denied access to the courts. “Under the First and Fourteenth Amendments, prisoners retain a
right of access to the courts.” Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008) (citing Lewis
v. Casey, 518 U.S. 343, 346 (1996)). “Where prisoners assert that defendants’ actions have
inhibited their opportunity to present a past legal claim, they must show (1) that they suffered an
‘actual injury’ – that they lost a chance to pursue a ‘nonfrivolous’ or ‘arguable’ underlying
claim; and (2) that they have no other “remedy that may be awarded as recompense” for the lost
claim other than in the present denial of access suit.” Id. (citing Christopher v. Harbury, 536
U.S. 403, 415 (2002)). Thus, to satisfy the requisite pleading requirements, “[t]he complaint
must describe the underlying arguable claim well enough to show that it is ‘more than mere
hope,’ and it must describe the ‘lost remedy.’” Id. at 205-06 (footnote omitted) (citing
Christopher, 536 U.S. at 416-17).
In Monroe, the Third Circuit determined that the complaint failed to state an access to
courts claim upon which relief could be granted and stated the following:
In this case, the defendants confiscated all of the plaintiffs’
contraband and non-contraband legal materials, including their
legal briefs, transcripts, notes of testimony, exhibits, copies of
reference books, treatises, journals, and personal handwritten
notes. In their initial pleadings, the plaintiffs’ claim rested solely
on the ground that the defendants confiscated their legal materials,
contraband and non-contraband alike. That claim, on its face, was
insufficient to state a claim under Harbury. So too were their
subsequent amendments, which alleged that they lost the
opportunity to pursue attacks of their convictions and civil rights
claims but did not specify facts demonstrating that the claims were
nonfrivolous. Nor did they maintain that they had no other remedy
to compensate them for their lost claims. Even liberally construing
their complaints as we must do for pro se litigants, they do not
sufficiently allege that they have suffered an actual injury.
536 F.3d at 206 (internal citation and footnote omitted).

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Plaintiff fails to describe the underlying arguable claims that he was prevented from
raising due to the confiscation of his legal materials. Therefore, pursuant to the pleading
standards set forth in above, plaintiff has failed to state a First and Fourteenth Amendment access
to the courts claim. As it is possible that an amendment could cure this deficiency, the dismissal
of this claim will be without prejudice.
Plaintiff also alleges that the confiscation of his legal materials violated his Eighth
Amendment rights as it constituted cruel and unusual punishment. More specifically, plaintiff
alleges that confiscating his legal materials constituted cruel and unusual punishment because it
“caused him to do many house of research; hours of typing legal petitions, briefs, written notice,
written motions, letters to courts, judges and attorneys all over again[,]” and that this caused him
to suffer from “mental anguish, stress, insomnia, loss of appetite, nauseated, anxiety, severe
headaches, worrying and mood swings[.]” (Dkt. No. 1 at p. 5.)
To state a claim under the Eighth Amendment for cruel and unusual punishment, a
plaintiff must allege both an objective and a subjective component. See Wilson v Seiter, 501
U.S. 294, 298 (1991), see also Ali v. Suchocki, 254 F. App’x 143, 145 (3d Cir. 2007) (per
curiam) (citation omitted). Only “extreme deprivations” are sufficient to make out an Eighth
Amendment claim. See Hudson v. McMillan, 503 U.S. 1, 9 (1992). As to the objective
component, only those deprivations denying the “minimal civilized measure of life’s
necessities,” which includes food, clothing, shelter, sanitation, medical care and personal safety
qualify as sufficiently grave to form the basis of an Eighth Amendment violation. See Betts v.
New Castle Youth Dev. Ctr., 621 F.3d 249, 256 (3d Cir. 2010). As to the subjective component,
the plaintiff must show that the prison official acted with deliberate indifference to the prisoner’s
health or safety. See Wilson, 501 U.S. at 298-99. Thus, ‘“the official must both be aware of

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facts from which the inference could be drawn that a substantial risk of serious harm exists, and
he must also draw the inference.’” Wilson v. Burks, 423 F. App’x 169, 173 (3d Cir. 2011) (per
curiam) (quoting Farmer, 511 U.S. at 837).
In this case, plaintiff fails to state an Eighth Amendment cruel and unusual punishment
claim. Confiscating plaintiff’s legal materials did not deny plaintiff the minimal civilized
measure of life necessities such as food, clothing, shelter, sanitation, medical care or personal
safety. Accordingly, this claim will be dismissed with prejudice as any potential amendment
would be futile.
Finally, plaintiff argues that his Sixth Amendment rights were violated due to the
confiscation of his legal materials. More specifically, plaintiff argues that he was not allowed to
have the assistance of counsel, presumably to redress his grievances with the prison. Contrary to
plaintiff’s argument, he had no absolute constitutional right to counsel to proceed with his
pursuit of prison grievances. See Parham v. Johnson, 126 F.3d 454, 456 (3d Cir. 1997) (“The
Supreme Court has not recognized nor has the court of appeals found a constitutional right to
counsel for civil litigants.”) (citations omitted). Accordingly, plaintiff’s Sixth Amendment claim
will be dismissed with prejudice as any possible amendment would be futile.
iii.

Legal Assistance to Other Inmates Claim

Plaintiff also alleges that confiscating his legal materials prevented plaintiff from
providing legal assistance to other inmates. Plaintiff states that the legal materials that were
confiscated also contained the legal materials of other inmates. Plaintiff’s arguments
notwithstanding, inmate-to-inmate legal assistance does not receive any more constitutional
protection than correspondence between inmates without legal assistance. See Perotti v.
Quinones, 488 F. App’x 141, 145 (7th Cir. 2012) (“[I]nmates do not have a constitutional right to

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provide legal assistance to other prisoners.”) (citing Shaw v. Murphy, 532 U.S. 223, 231 (2001);
Watkins v. Kasper, 599 F.3d 791, 797 (7th Cir. 2010)); see also Payne v. Pummill, No. 13-1172,
2013 WL 6175819, at *1 (S.D. Oh. Nov. 22, 2013) (“While the First Amendment right of
prisoners for access to the courts is well-established, a prisoner has no independent right to assist
other prisoners with their legal work.”) (citing Thaddeus-X v. Blatter, 175 F.3d 378, 395 (6th Cir.
1999) (en banc)), report and recommendation adopted by, 2014 WL 272598 (S.D. Oh. Jan. 23,
2014); Armstrong v. Coleman, No. 11-1074, 2013 WL 3776919, at *11 (W.D. Pa. July 15, 2013)
(noting that “inmate-to-inmate correspondence that includes legal assistance does not receive any
more constitutional protection than correspondence between inmates without any legal
assistance.”) (citations omitted). Accordingly, plaintiff fails to state that he had a constitutional
right to provide legal assistance to other inmates. Therefore, this claim will be dismissed with
prejudice as any potential amendment would be futile.
iv.

Photocopying Services Claim

Plaintiff also alleges that the defendants violated his right to photocopying services by
confiscating his legal materials. According to plaintiff, by confiscating his legal materials, he
“was unable to use the Legal Photocopying Services to send his legal petitions to the courts to
redress” grievances. (See Dkt. No. 1 at p. 8.)
At the outset, the Court notes that prisoners do not have a right to free photocopies for
use in lawsuits. See Kelly v. York Cnty. Prison, 325 F. App’x 144, 145 (3d Cir. 2009) (per
curiam) (citing Johnson v. Moore, 948 F.2d 517, 521 (9th Cir. 1991); Harrell v. Keohane, 621
F.2d 1059, 1061 (10th Cir. 1980)). Similar to plaintiff’s access to the court’s claim, this claim
also fails as plaintiff fails to show that he was actually injured due to a purported failure to being

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able to utilize the photocopying services. Accord Kelly, 325 F. App’x at 145. Therefore, this
claim will be dismissed without prejudice for failure to state a claim.
v.

Failure to Inform Plaintiff of Rule Change Claim

Plaintiff alleges that the defendants violated his rights by not informing him of the rules
and procedures concerning personal computers and word processors at the South Woods State
Prison. According to plaintiff, the defendants revised the personal computer/word processing
agreement which led to a disciplinary charge being levied against plaintiff where plaintiff
discovered that his legal materials had been read through.
It is unclear what constitutional basis plaintiff is attempting to raise this claim under.
Accordingly, the Court finds that this claim lacks facial plausibility under the Iqbal standard.
Nonetheless, plaintiff may be attempting to argue that the failure to inform him of the rule
change caused his legal materials to be read through and ultimately confiscated which thereby
violated his First Amendment right of access to the courts. However, for the reasons previously
stated, plaintiff failed to state an access to the courts claim. Therefore, for the foregoing reasons,
this claim will also be dismissed without prejudice for failure to state a claim.
vi.

Section 1985 and 1986 Claims

Plaintiff next alleges that the defendants are liable under 42 U.S.C. § 1985 for conspiracy
and 42 U.S.C. § 1986 for neglecting to prevent plaintiff from being injured. Section 1985
consists of three subsections dealing with various conspiracies to interfere with civil rights.
Subsection (3) provides a remedy, generally, if two or more persons conspire or go on the
premises of another, “for the purpose of depriving, either directly or indirectly, any person . . . of
the equal protection of the laws, or of equal privileges and immunities under the laws.” 42
U.S.C. § 1985(3). To state a claim under § 1985(3), a plaintiff must allege, “(1) a conspiracy; (2)

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for the purpose of depriving, either directly or indirectly, any person or class of persons of the
equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act
in furtherance of the conspiracy; (4) whereby a person is injured in his person or property or
deprived of any right or privilege of a citizen of the United States.” Farber v. City of Paterson,
440 F.3d 131, 134 (3d Cir. 2006) (internal quotation marks and citations omitted). With respect
to the second element, “a claimant must allege some racial or perhaps otherwise class-based,
invidiously discriminatory animus behind the conspirators’ action in order to state a claim.” Id.
at 135 (emphasis in original) (internal quotation marks and citation omitted).
In this case, no such allegations of discriminatory intent are set forth in the complaint.
Accordingly, plaintiff fails to state a § 1985 claim against the defendants and the claim will be
dismissed without prejudice.
Section 1986 of Title 42 states that:
[e]very person who, having knowledge that any of the wrongs
conspired to be done, and mentioned in section 1985 of this title,
are about to be committed, and having power to prevent or aid in
preventing the commission of the same, neglects or refuses so to
do, if such wrongful act be committed, shall be liable to the party
injured.
42 U.S.C. § 1986. Because plaintiff failed to state a conspiracy claim under § 1985, he also fails
to state his related § 1986 claim against these three defendants. See Heath v. Shannon, 442 F.
App’x 712, 718 (3d Cir. 2011) (per curiam) (“Because Health failed to state a conspiracy claim
under § 1985, the District Court properly ruled that his related § 1986 claims also failed.”) (citing
Rogin v. Bensalem Twp., 616 F.2d 680, 696 (3d Cir. 1980)). Thus, plaintiff’s § 1986 claim will
also be dismissed without prejudice.

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vii.

State Law Claims

It appears as if plaintiff is also attempting to bring state law claims against defendants
Muniak and Sheppard as well as the unnamed John Doe Lieutenant. Indeed, plaintiff asserts that
the defendants conspired against him separate and apart from his § 1985 conspiracy claims
against these three defendants. To state a claim for civil conspiracy in New Jersey, “the plaintiff
must allege that the defendant (1) entered into an agreement with at least one other person, (2)
for the purpose of committing an unlawful act; and (3) one of the conspirators then took at least
one overt act in furtherance of the agreement; and (4) plaintiff suffered some damage as a
result.” White v. Taylor, No. 10-5485, 2013 WL 4595885, at *6 (D.N.J. Aug. 28, 2013) (citing
Banco Popular N. Am. v. Gandi, 876 A.2d 253, 263 (N.J. 2005)).
In this case, all of the federal claims against defendants Muniak and Sheppard as well as
the unnamed John Doe Lieutenant have been dismissed. Any state law claims are therefore
presumably asserted pursuant to the Court’s supplemental jurisdiction under 28 U.S.C. § 1367.
However, when a court has dismissed all of the claims over which it had original jurisdiction
against a defendant, the supplemental jurisdiction statute grants the Court discretion to dismissed
the remaining state law claims against them. See 28 U.S.C. § 1367(c)(3). As plaintiff’s federal
claims against defendants Muniak, Sheppard and the unnamed John Doe Lieutenant have been
dismissed at this early screening stage, the Court will also decline to exercise supplemental
jurisdiction over his state law claims against these three defendants.
B. Claims Against Warden Christopher Holmes
Plaintiff claims that he wrote to defendant Holmes in November, 2012, regarding his
rights being violated at the South Woods State Prison. Plaintiff states that he requested from
Holmes that he order the defendants to not violate his rights by confiscating his legal materials.

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Holmes responded to plaintiff that he needed to use the inmate remedy system to raise these
issues. Plaintiff argues that Holmes failed to intervene to correct the unconstitutional actions of
the defendants that he supervises. Furthermore, by Holmes inaction, he denied him access to the
courts in light of plaintiff’s confiscated legal materials.
“In order for liability to attach under § 1983, a plaintiff must show that a defendant was
personally involved in the deprivation of his federal rights.” Fears v. Beard, 532 F. App’x 78,
81 (3d Cir. 2013) (per curiam) (citing Rode v. Dellaciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)).
“[L]iability cannot be predicated solely on the operation of respondeat superior. Personal
involvement can be shown through allegations of personal direction or of actual knowledge and
acquiescence.” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (citation omitted). In this
case, plaintiff’s allegations against Holmes appear to be based primarily on a respondeat
superior theory in his capacity as warden of the South Woods State Prison. This is typically
insufficient to state a § 1983 claim.
Nevertheless, plaintiff claims that he put Holmes on notice of the purported constitutional
violations by writing him in November, 2012. Several courts have explained that a plaintiff
states a claim by alleging that a supervisory defendant reviewed a grievance where the plaintiff
alleges an ongoing violation as that defendants is then ‘“personally involved in that violation
because [s]he is confronted with a situation [s]he can remedy directly.’” Carter v. Smith, No. 08279, 2009 WL 3088428, at *6 (E.D. Pa. Sept. 23, 2009) (quoting Harnett v. Barr, 538 F. Supp.
2d 511, 524-25 (N.D.N.Y. 2008)); see also Zappulla v. Fischer, No. 11-6733, 2013 WL
1387033, at *10 (S.D.N.Y. Apr. 5, 2013) (“[T]he Complaint further alleges that Defendant Lee,
after being informed of that ongoing violation through the grievance process, failed to remedy
that wrong. Those allegations . . . are adequate to state a claim against Lee.”) (citations omitted);

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Whitehead v. Rozum, No. 11-102, 2012 WL 4378193, at *2 (W.D. Pa. Aug. 7, 2012) (“In the
prison setting, where a grievance alleges an ongoing constitutional violation, a supervisory
defendant who reviews it is personally involved in that violation because he is confronted with a
situation he can remedy directly.”) (citations omitted), report and recommendation adopted by,
2012 WL 4370929 (W.D. Pa. Sept. 24, 2012); Williams v. Johnson, No. 10-1290, 2011 WL
1396967, at *5 (E.D. Va. Apr. 11, 2011) (“In support of his argument, Williams states that
Johnson was made aware of these violations through appeals to denials of grievances that
Williams filed. To the extent that the [allegations] relate to ongoing constitutional violations that
defendant Johnson was made aware of, Williams has plausibly stated a claim for which Johnson
made be liable.”); Binsack v. Lackawanna Cnty. Prison, No. 10-535, 2010 WL 4973309, at *3
(M.D. Pa. Oct. 14, 2010) (“A prisoner’s grievance or complaint regarding ongoing abuse may be
sufficient to put a prison official on notice of such abuse by other prison staff and therefore may
show actual knowledge of an alleged constitutional violation and acquiescence in the events
forming the basis of a prisoner’s claims.”) (citing Atkinson v. Taylor, 316 F.3d 257, 270-71 (3d
Cir. 2003)), report and recommendation adopted by, 2010 WL 4956329 (M.D. Pa. Dec. 1,
2010).
In the instant case, however, plaintiff has not stated a constitutional violation, must less
an ongoing violation. Indeed, plaintiff failed to state that the confiscation of his legal materials
was an ongoing violation that Holmes could remedy directly as plaintiff only alleges that the
confiscation of his legal materials occurred once. Furthermore, for the reasons previously stated,
plaintiff failed to allege even a constitutional violation for this confiscation as he failed to allege
arguable claims that he was prevented from raising to sustain that a constitutional violation had

16

actually taken place. Accordingly, plaintiff’s § 1983 claims against Holmes will be dismissed
without prejudice for failure to state a claim upon which relief can be granted.
Plaintiff also raises claims under 42 U.S.C. § 1985 and 1986 against Holmes. As
previously noted, to state a § 1985 claim, a plaintiff must allege, “(1) a conspiracy; (2) for the
purpose of depriving, either directly or indirectly, any person or class of persons of the equal
protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in
furtherance of the conspiracy; (4) whereby a person is injured in his person or property or
deprived of any right or privilege of a citizen of the United States.” Farber, 440 F.3d at 134
(internal quotation marks and citations omitted). With respect to the second element, “a claimant
must allege some racial or perhaps otherwise class-based, invidiously discriminatory animus
behind the conspirators’ action in order to state a claim.” Id. at 135 (emphasis in original)
(internal quotation marks and citation omitted). Plaintiff fails to allege some racial or perhaps
otherwise class based animus behind Holmes behavior. Therefore, plaintiff fails to state a §
1985 claim. Furthermore, as plaintiff’s § 1985 claim fails, so does his § 1986 claim against
Holmes. See Heath, 442 F. App’x at 718 (citing Rogin, 616 F.2d at 696).
For all of the foregoing reasons, the claims against Holmes will be dismissed without
prejudice for failure to state a claim.
C. Claims Against Greg Lanoza, David Metelow & Gary Lanigan
Plaintiff’s claims against defendants Lanoza, Metelow and Lanigan are similar to his
claims against Warden Holmes. The only main difference between these claims and the claims
against Holmes is the date upon which plaintiff informed these defendants of the purported
constitutional violations (December 19, 2012 for Lanoza, February 21, 2013 for Metelow and
November 28, 2012 for Lanigan). However, similar to the claims against Holmes, plaintiff

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alleges that these three defendants failed to intervene to correct the unconstitutional actions of
the defendants for whom they supervise which caused plaintiff harm as he was denied access to
the courts due to the confiscation of his legal papers. Additionally, as to defendant Lanoza only,
plaintiff also alleges a § 1985 and § 1986 claim. However, plaintiff’s claims against these three
defendants fail to state a claim upon which relief can be granted for the same reasons as to why
he failed to state claims against Holmes. See infra Part IV.B. Therefore, the claims against these
defendants will also be dismissed without prejudice.
D. Request for Appointment of Counsel
Plaintiff has requested the appointment of counsel. (See Dkt. No. 4.) Indigent persons
raising civil rights claims have no absolute constitutional right to counsel. See Parham, 126 F.3d
at 456-57. In determining whether to appoint counsel, a court considers the following: (1) the
plaintiff’s ability to present his or her own case; (2) the complexity of the legal issues; (3) the
degree to which factual investigation will be necessary and the ability of the plaintiff to pursue
such investigation; (4) the amount a case is likely to turn on credibility determinations; (5)
whether the case will require the testimony of expert witnesses; and (6) whether the plaintiff can
attain and afford counsel on his own behalf. See Tabron v. Grace, 6 F.3d 147, 155-56, 157 n. 5
(3d Cir. 1993); see also Cuevas v. United States, 422 F. App’x 142, 144-45 (3d Cir. 2011) (per
curiam) (reiterating the Tabron factors).
Applying these factors to this case, the Court will deny plaintiff’s request for the appointment
of counsel. It is worth noting that the complaint is being dismissed without prejudice due to a
failure to state a claim. Thus, plaintiff’s request for the appointment of counsel will also be
denied without prejudice as plaintiff has yet to even state a claim upon which relief can be
granted.

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V.

CONCLUSION

For the foregoing reasons, the complaint will be dismissed. An appropriate order will be
entered.

DATED: April 24, 2014

s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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