Monroe v. Beard ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
7-29-2008
Monroe v. Beard
Precedential or Non-Precedential: Precedential
Docket No. 07-3711
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3711
EDWARD MONROE, sui juris;
DEVON COLLINS, sui juris;
ANTHONY DICKERSON, sui juris;
GREGORY STOVER, sui juris;
ROBERT J. ROYSTER, sui juris;
CHARLES POULSON, JR., sui juris;
RICHARD K. JOHNSON, sui juris;
SALIM HICKMAN, sui juris;
HOWARD GIBSON, sui juris;
MAURICE EVERETT, sui juris;
ALEXANDER DAVIS, sui juris;
LAWRENCE BELSER, sui juris,
Appellants
v.
JEFFREY A. BEARD, PH.D; DAVID DIGUGLIELMO;
SHAFFER, EXECUTIVE DEPUTY SECRETARY;
DONALD T. VAUGHN; MURRAY, DEPUTY;
BUZZARD, MAJOR; FIELD, MAJOR;
MICHAEL A. LORENZO; THOMAS DOHMAN;
SCOTT PASQUALE; JEFFREY BAKER;
SHARON LUQUIS; SYLVIA PALLOTT; ERIC JONES;
KNAUER, LT.; MOYER, LT.; RADLE, LT.; LT. OWENS;
GRUNDER, LT.; LINDA MILLER; KIM ULISNY;
MARY CANNINO; C/O HAISTON;
UNKNOWN ACCOMPLICE; LT. SCOTT BOWMAN;
C/O J. R. ANDALORA; SGT. VOJACEK; C/O STRONG;
C/O N. HALL; C/O N. HOLLIS; SGT. HALE;
C/O REESE; C/O SHORT; C/O A. CAMPBELL;
C/O LEBLANC; LT. A. FLAIMS;
C/O McMICHAEL; C/O D. M. WEAVER;
LT. LAPINKSKI; C/O STOKES; C/O ULKOWSKI
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Civil Action No. 05-cv-04937
(Honorable Lawrence F. Stengel)
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 20, 2008
Before: SCIRICA, Chief Judge,
HARDIMAN and STAPLETON, Circuit Judges.
(Filed: July 29, 2008)
2
Edward Monroe
Devon Collins,
Anthony Dickerson,
Gregory Stover,
Robert J. Royster,
Charles Poulson, Jr.,
Salim Hickman,
Howard Gibson,
Maurice Everett,
Alexander Davis,
Lawrence Belser,
Appellants, Pro Se
Claudia M. Tesoro, Esquire
Office of Attorney General of Pennsylvania
21 South 12th Street, 3rd Floor
Philadelphia, Pennsylvania 19107
Attorney for Appellees
OPINION OF THE COURT
PER CURIAM.
3
Fifteen current and former inmates 1 at the State
Correctional Institute (SCI) at Graterford, Pennsylvania filed a
pro se lawsuit in the United States District Court for the Eastern
District of Pennsylvania against various employees of the
Pennsylvania Department of Corrections (DOC). Brought in
forma pauperis and pursuant to 42 U.S.C. § 1983, the complaint
alleged that the defendants violated the plaintiffs’ constitutional
rights by confiscating their legal materials, including certain
publications and Uniform Commercial Code (UCC) materials.
The District Court granted the defendants’ motion to dismiss
under Fed. R. Civ. P. 12(b)(6) and their motion for summary
judgment. Because the plaintiffs have not established that the
defendants’ confiscation of their materials violated their
constitutional rights, we will affirm the District Court’s
dismissal of their lawsuit.
1
We note that only twelve of the original plaintiffs appealed.
Furthermore, as this appeal was pending, Appellees filed a
suggestion of death pursuant to Fed. R. App. P. 43(a)(1)
advising this Court of the death of Appellant Richard K.
Johnson. After receiving responses from both sides and noting
that a personal representative had not been appointed through
the appropriate county’s Register of Wills or Orphan’s Court to
represent Johnson’s interests, the Clerk issued an order dated
March 26, 2008, dismissing Appellant Johnson as a party to the
appeal. No response by a properly appointed representative has
been filed since that order was issued.
4
I. Background
In 2004, William Fairall, DOC Deputy Chief Counsel,
learned that inmates at prisons across the country were filing
fraudulent liens and judgments against prosecutors and prison
officials.2 Evidently, inmates were filing financing statements
2
In federal criminal and civil prosecutions of inmates filing
false commercial liens against prosecutors, judges, corrections
officers and other government employees, courts have uniformly
declared those liens null and void. See, e.g., United States v.
Joiner, 418 F.3d 863 (8th Cir. 2005)(affirming judgment of
conviction of conspiracy to injure a judicial officers in their
property and to intimidate judicial officers in the discharge of
their duties against defendant-inmates who filed false UCC liens
against judges and prosecutors); United States v. Speight, 75
Fed.Appx. 802 (2d Cir. 2003)(affirming judgment of conviction
against defendant-inmates claiming that government officials
owed them multi-million dollar debts and filing fraudulent liens
to obtain those “debts”); United States v. McKinley, 53 F.3d
1170 (10th Cir. 1995)(affirming order declaring false
commercial lien, filed by defendant-inmate against prosecutor
and judge, “null, void and of no legal effect”); United States v.
Martin, 356 F. Supp. 2d 621 (W.D. Va. 2005)(granting
government’s request for civil injunctions and monetary
damages against defendant-inmates who filed false commercial
liens against judges and prosecutors); United States v. Orrego,
No. 04-CV-0008SJ, 2004 WL 1447954 (E.D.N.Y. June 22,
5
under Article 9 of the UCC, which sets forth a process for
perfecting security interests in property. 3 These liens and
judgments, accessible on financing statement forms, are easy to
file. Once registered, however, the fraudulent liens are very
burdensome to remove. For example, in a New Jersey incident,
criminal defendants registered a fraudulent $14.5 million lien
with the New Jersey Department of Revenue against a federal
prosecutor and a $ 3.5 million lien against a federal judge for
using their “copyrighted” names in court papers and hearings; it
took a federal court order to remove them. In addition to the
substantial effort and expense required to expunge the liens, the
fraudulent filings ruined the victims’ credit reports. See Decl.
of William Fairall, Deputy Chief Counsel of the Department of
2004)(granting injunction and an award of money damages in
civil action brought by the government against defendant-
inmates who filed fraudulent liens against judge as retribution
for using inmate’s “copyrighted” name); United States v.
Anderson, No. 97C821, 1998 WL 704357 (N.D. Ill. Sept. 25,
1998)(granting declaratory, injunctive and monetary relief for
government in action against defendant-inmate who filed
commercial liens against judge, prosecutor, and his public
defender).
3
The inmates have filed these commercial liens with state
departments of revenue, departments of state, or other the state
agencies responsible for receiving and recording these financial
instruments.
6
Corrections ¶¶ 3-7; Third Decl. Of John W. Moyer, Lieutenant,
Internal Security Office, SCI-Graterford, ¶¶ 3-4; John Shiffman,
Defendants Go on the Offensive, P HILADELPHIA INQUIRER, Jun.
6, 2004, at B1.4
4
Further investigation revealed that various publications were
advocating the exploitation of the UCC filing process and
provided explicit instructions on how to perfect these fraudulent
security interests, including sample financing statements forms.
One instruction book, Cracking the Code, calls for the use of
commercial law to resist authority, including the correctional
and judicial systems. The book adheres to the “Redemptionist”
theory, which propounds that a person has a split personality: a
real person and a fictional person called the “strawman.” The
“strawman” purportedly came into being when the United States
went off the gold standard in 1993, and, instead, pledged the
strawman of its citizens as collateral for the country’s national
debt. Redemptionists claim that government has power only
over the strawman and not over the live person, who remains
free. Individuals can free themselves by filing UCC financing
statements, thereby acquiring an interest in their strawman.
Thereafter, the real person can demand that government officials
pay enormous sums of money to use the strawman’s name or, in
the case of prisoners, to keep him in custody. If government
officials refuse, inmates are encouraged to file liens against
correctional officers and other prison officials in order to extort
their release from prison. Adherents of this scheme also
advocate that inmates copyright their names to justify filing liens
7
In 2004, security staff at various DOC institutions
reported that inmates were receiving information and documents
concerning the filing of liens under the UCC. Additionally, in
June 2005, the DOC discovered that a Pennsylvania inmate had
filed a fraudulent lien against a state court judge, a
superintendent, and DOC Secretary Jeffrey Beard (a defendant
in this action); although the DOC sought to expunge the lien
and the Pennsylvania Department of State issued adjudications
declaring the financing statements fraudulent, the inmate
appealed both adjudications. Moreover, officials learned that
inmates within the DOC were charging others fees of up to
$1,500 to start the UCC redemption process
As a result of these events, in July 2005, DOC
management issued a memorandum to all its institutions,
declaring as “contraband” all UCC forms, documents relating to
UCC filings, materials on “redemption” and copyrighting
names, and publications regarding the “redemption or lien
filings.” Specifically, it established that the possession and
receipt of these publications violated its policy on inmate mail
privilege, DC-ADM 803, which prohibits “[w]ritings that
advocate, assist or are evidence of criminal activity or facilitate
misconduct.” The memorandum also directed prison officials
to investigate inmates believed to be engaged in copyrighting
against officials using their names in public records such as
indictments or court papers. See Fairall Decl. ¶ 8; Shiffman,
Defendants Go on the Offensive, supra, at B1, B4.
8
their names or filing liens. But it cautioned that the material
should not be destroyed until inmates had an opportunity to
object using an “Unacceptable Correspondence Form,”
indicating that they had an independent, legitimate purpose for
possessing the items.
Informed of this policy, Internal Security Staff at SCI-
Graterford began tracking and keeping a list of which Graterford
inmates had been receiving these materials. In August 2005,
Lieutenant Moyer instructed corrections officers to raid the cells
of inmates on the list of names compiled. The officers entered
the cells, strip-searched the inmates, ordered them to redress,
handcuffed them, and ordered them to stand outside while the
officers searched their cells. During this search, officers
confiscated all of the inmates’ contraband and non-contraband
legal materials, including legal briefs, transcripts, notes of
testimony, exhibits, copies of reference books, treatises,
journals, and personal handwritten notes.
Following the search, the officers took the seized
materials to the Internal Security Office and placed each
inmate’s materials into separate boxes. Each inmate received
a letter setting forth the DOC’s rationale for the raid and
informing him that he could object to the searches by filling out
an “Unacceptable Correspondence Form.” From August 2005
to July 2006, Lieutenant Moyer conducted a preliminary review
of the materials and evaluated which items were immediately
returnable. In October and November 2005, he met with the
inmates and offered to return the returnable items, but many
9
inmates refused the offer.5
A second set of reviews occurred in August 2006 after
Moyer and legal counsel evaluated the confiscated materials
and, for each inmate, created a list of documents that were and
were not returnable. Moyer met with each of the inmates,
presented him with the compiled list, and offered to let each
inmate review his material and take back the returnable
materials. Although four of the plaintiffs reviewed the
materials, the rest refused to review any of the materials
presented. All of the inmates refused to take back material that
was deemed returnable.
Pursuant to a court order, in September and October
2006, Moyer and two other officers supervised a review of the
materials by nine of the plaintiffs involved in this action. All
but one of the plaintiffs refused defendants’ offer to receive
back items deemed returnable.
II. Procedural History
After pursuing complaints through the both the prison’s
special and normal grievance procedures,6 the plaintiffs filed the
5
Although two plaintiffs accepted Moyer’s offer to receive
back materials, the rest of the plaintiffs refused, or had no
legitimate material to be returned.
6
For substantially the reasons set forth by the District Court,
we agree that the formal grievance procedure was not available
10
instant lawsuit, which the District Court construed as arising
under 42 U.S.C. § 1983. They collectively alleged that the
defendants: (1) executed searches and seizures of plaintiffs’
cells in violation of the Fourth Amendment; (2) inflicted
unnecessary and wanton pain without penological justification
in violation of the Eighth Amendment7 ; (3) confiscated their
legal materials, thereby depriving them of their First
Amendment right of access to the courts; (4) deprived them of
property without Due Process under the Fourteenth Amendment;
(5) deprived them of their First Amendment right to use UCC
materials and publications advocating the redemption process
and copyrighting their names; and (6) are engaged in activity
violating the Commerce Clause and the Anti-Peonage Act. The
District Court granted the defendants’ motion pursuant to Fed.
R. Civ. P. 12(b)(6) and dismissed their Fourth, Eighth, and First
Amendment access to the courts claims, as well as their
Commerce Clause and Anti-Peonage claims. However, it
allowed their other claims to proceed. Thereafter, the
defendants moved for summary judgment on the remaining
claims, and the plaintiffs filed cross-motions for summary
judgment. The District Court granted summary judgment for the
to the plaintiffs for the purposes of 42 U.S.C. § 1997e, and,
accordingly, we find no procedural bar to reviewing the merits
of this appeal.
7
The plaintiffs do not pursue their Fourth and Eighth
Amendment claims on appeal.
11
defendants and denied the plaintiffs’ cross-motions. Plaintiffs
now appeal both orders.
III. Motion to Dismiss
We have jurisdiction over the District Court’s orders
pursuant to 28 U.S.C. § 1291. We exercise plenary review over
the District Court’s order dismissing claims under Fed. R. Civ.
P. 12(b)(6). See Sands v. McCormick, 502 F.3d 263, 267 (3d
Cir. 2007). Reviewing such an order, we accept as true all
allegations in the plaintiff’s complaint as well as all reasonable
inferences that can be drawn from them, and we construe them
in a light most favorable to the non-movant. Bright v.
Westmoorland County, 380 F.3d 729, 735 (3d Cir. 2004). To
survive a motion to dismiss, “a plaintiff must allege facts that
raise a right to relief above the speculative level on the
assumption that the allegations in the complaint are true (even
if doubtful in fact).” Victaulic Co. v. Tieman, 499 F.3d 227, 234
(3d Cir. 2007)(citing Bell Atlantic Corp. v. Twombly, 127 S.
Ct. 1955, 1965 (2007)).
A. First Amendment, Access to Court Claim
Under the First and Fourteenth Amendments, prisoners
retain a right of access to the courts. See Lewis v. Casey, 518
U.S. 343, 346 (1996). However, prisoners may only proceed on
access-to-courts claims in two types of cases, challenges (direct
or collateral) to their sentences and conditions of confinement.
See id. at 354-55. Where prisoners assert that defendants’
actions have inhibited their opportunity to present a past legal
12
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. See Christopher
v. Harbury, 536 U.S. 403, 415 (2002). To that end, prisoners
must satisfy certain pleading requirements: The 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.” 8 See id. at 416-17.
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. See id. 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
8
In other words, the underlying claim should be pled in a
manner that satisfies Fed. R. Civ. P. 8(a). Harbury, 536 U.S. at
417-18.
13
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.9 See id.
Finally, we note that the defendants gave the plaintiffs
three opportunities (one pursuant to a court order) to review
their confiscated materials and receive back the approved, non-
contraband items. Although some of the plaintiffs accepted
back approved materials,10 most of them either had non-
returnable materials, or chose not to accept back the materials
deemed acceptable. Plaintiffs do not dispute the adequacy of
this post-seizure remedy for pursuing their “lost” claims, nor do
they suggest that the contraband materials were critical to
pursuing non-frivolous claims.
9
Four plaintiffs – Davis, Collins, Everett and Pouslon –
separately filed documents citing the legal proceedings they
were pursuing when the defendants confiscated their legal
materials. However, although they cite their “lost” proceedings,
they nevertheless failed to plead facts showing that their claims
were nonfrivolous or may no longer be pursued as a result of
defendant’s actions. Accordingly, we agree with the District
Court that their allegations are unavailing under this claim.
10
We note that Plaintiffs Hickman, Perry and Green accepted
back approved materials.
14
Accordingly, we agree with the District Court that the
plaintiffs have failed to state a claim for relief on the ground that
they were denied their constitutional right of access to the
courts.
IV. Summary Judgment
We exercise plenary review over the District Court’s
order granting summary judgment. See Williams v. Consovoy,
453 F.3d 173, 178 (3d Cir. 2006). Summary judgment is
appropriate when “there is no genuine issue as to any material
fact and the moving party is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(c). The moving party bears the burden
of proving that there is no genuine dispute as to any material
fact. Miller v. Indiana Hosp., 843 F.3d 139, 143 (3d Cir. 1998).
In reviewing the District Court’s grant of summary judgment,
we view the facts in a light most favorable to the nonmoving
party. Lighthouse Inst. for Evangelism, Inc. v. City of Long
Branch, 510 F.3d 253, 260 (3d Cir. 2007). When a moving
party satisfies its burden of proving a prima facie case for
summary judgment, the opposing party “must do more than
simply show that there is some metaphysical doubt as to material
facts.” Matsushita Elec. Indus. Co v. Zenith Radio Corp., 475
U.S. 574, 586 (1986). Instead, “[t]here must be sufficient
evidence for a jury to return a verdict in favor of the non-
moving party; if the evidence is merely colorable or not
significantly probative, summary judgment should be granted.”
Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994).
15
A. First Amendment
Although “imprisonment does not automatically deprive
a prisoner of . . . [First Amendment] protections,” those
constitutional rights may at times be restricted within the prison
setting. Beard v. Banks, 126 S. Ct. 2572, 2577-78 (2006). We
evaluate prison regulations alleged to violate an inmate’s First
Amendment right to possess publications and legal materials
under the “reasonableness” test set forth in Turner v. Safley, 482
U.S. 78 (1987). First, we assess whether there is a “‘valid,
rational connection’ between the prison regulation and the
legitimate interest put forth to justify it.” Jones v. Brown, 461
F.3d 353, 360 (3d Cir. 2006). If a rational relationship exists,
we consider three other factors: “(1) whether inmates retain
alternative means of exercising the circumscribed right . . . (2)
the burden on prison resources that would be imposed by
accommodating the right and (3) whether there are alternatives
to the regulation that fully accommodate[ ] the prisoner’s rights
at de minimis cost to valid penological objectives.” Id. at 360-
61. However, prison administrators are not required to use the
least restrictive means possible to further legitimate penological
interests. See Thornburgh, 490 U.S. at 411.
Ultimately, the party challenging the prison regulation
bears the burden of showing that it is constitutionally
unreasonable. Id. (citing Overton v. Bazzetta, 539 U.S. 126,
132 (2003)). This burden is “heavy” because plaintiffs must
overcome the presumption that prison officials acted within their
“broad discretion.” See Shaw v. Murphy, 532 U.S. 223, 232
16
(2001). Nevertheless, prison administrators must come forward
with a legitimate governmental interest that justifies the
regulation, and they must demonstrate a rational connection
between the policy and that interest. Jones, 461 F.3d at 360
(citing Wolf v. Ashcroft, 297 F.3d 305, 308 (3d Cir. 2002)).
Although we accord substantial deference to their professional
judgment, see Overton, 539 U.S. at 132, the defendant
administrators’ evidence must “amount to more than a
conclusory assertion.” Id.
In this case, plaintiffs assert that the DOC’s confiscation
of their publications and legal materials infringes on their First
Amendment rights. The parties do not dispute the regulation’s
existence and its implementation. As the relevant penological
interest, the defendants assert their interest in protecting prison
administrators and other government officials from inmates
filing bogus liens against them. The means they used to serve
that interest was to designate certain materials (including inmate
publications advocating the “redemption” theory, UCC
materials, and information on copyrighting names) as
contraband, execute searches of inmate cells, and seize all of
their legal materials, including non-contraband items.
Our review of the record supports the District Court’s
conclusion that a rational nexus exists between the prison’s
penological interest and the means used. Defendants argue, and
we agree, that as prison administrators they are entitled to
regulate and prevent criminal activity within the DOC. In
developing this policy, defendants point out that, nationwide,
17
prisoners have filed fraudulent liens against public officials, and
that they have been subjected to criminal prosecution as a
result.11 It was frequently the case that the inmate-defendants in
those cases used the same instruction manuals and UCC
materials as those possessed by the plaintiffs here to file the
false liens. Moreover, defendants had noticed that inmates
within the Pennsylvania prisons, including SCI-Graterford, were
receiving publications and documents encouraging the UCC,
redemption, and name-copyrighting schemes. Then, in June
2005, what seemed to be a distant threat became a reality for the
DOC when a Pennsylvania inmate filed a fraudulent lien against
11
See, e.g., United States v. Joiner, 418 F.3d 863 (8th Cir.
2005) (affirming judgment of conviction against defendant-
inmates for conspiracy to injure judicial officers in their
property through the filing of UCC liens); United States v.
Getzschman, 81 Fed.Appx. 619 (8th Cir. 2003) (affirming
judgment of conviction, pursuant to federal statute prohibiting
production of false or fictitious financial instruments, against
defendant-inmates for conspiring to pass or file fictitious sight
drafts under “redemption” scheme); United States v. Speight, 75
Fed.Appx. 802 (2d Cir. 2003) (affirming judgment of conviction
for mail fraud against defendant-inmates for filing fraudulent
liens against federal prosecutor and federal judge); United States
v. Boos, No. 97-6329, 1999 WL 12741 (10 th Cir. Jan. 14, 1999)
(affirming judgment of conviction against defendants for filing
retaliatory false liens against IRS agents who tried to collect
taxes).
18
a state court judge and two DOC officials, including one of the
defendants in this action. In particular, DOC officials were
alarmed by this inmate’s prediction that “Soon the D.O.C. will
have 100's of people filing. It’s coming, and it can’t be stopped.”
Plaintiffs argue that the DOC’s confiscation of their
materials was unreasonable, because even though they have
possessed the contraband materials for some time, none of the
plaintiffs was ever, or intended to be, involved with the filing of
these bogus liens against judges, prosecutors or other
government officials. However, their argument is belied by the
fact that the August 2005 searches and seizures produced
partially completed financing statement forms. Additionally, in
the affidavits produced in this litigation, some of the plaintiffs
assert that they have a legal right to make these fraudulent
filings and to copyright their names. Moreover, in light of the
DOC’s experience with the inmate’s June 2005 filing, which
demonstrated that fraudulent UCC filings are easy to file but
burdensome to remove, along with the research that informed
their judgment on this policy, we conclude that the defendants’
decision to engage in preemptive action in this case was
reasonable and within their “broad discretion.” See Shaw, 532
U.S. at 232. Accordingly, we agree with the District Court that,
under the Turner threshold inquiry, the defendants have shown
that the DOC policy and the August 2005 confiscation of
plaintiffs’ materials were reasonably related to their interest in
protecting government officials from fraudulent liens. Jones,
461 F.3d at 360.
19
Next, we must evaluate whether the plaintiffs have any
alternate means of exercising their First Amendment rights. Id.
We must expansively view the right at issue as concerning the
right to possess publications and legal materials in general, and
not these publications in particular. See Thornburgh v. Abbott,
490 U.S. 401, 418 (1989). In that light, we observe that the
plaintiffs still have available to them a wide range of legal
materials and publications that do not pertain to the filing of
fraudulent liens. Moreover, although DOC officials confiscated
all of the plaintiffs’ materials, they granted them a chance to
retrieve their non-contraband publications and legal documents
– an opportunity most of them declined. Thus, we agree that the
plaintiffs retain a broad First Amendment right to view and
possess First Amendment materials.
Under the third Turner factor, we consider the impact of
accommodating the plaintiffs’ asserted right to possess the
contraband on guards, other inmates, and the allocation of
prisoner resources generally. Jones, 461 F.3d at 360.
Defendants argue, and we agree, that accommodating the
plaintiffs’ right to possess these materials may encourage them
to harass, intimidate or threaten prison officials, including
guards and administrators, by threatening to file liens. The
DOC’s experience with its inmate’s June 2005 filing against
Secretary Beard is instructive: As the record reveals, although
the DOC sought to expunge the lien and the Pennsylvania
Department of State issued adjudications declaring the financing
statements fraudulent, the inmate has appealed both
20
adjudications. Presumably, the DOC’s needless expenditure of
resources on this event continues. This incident demonstrates
the considerable “ripple effect” that accommodating the
plaintiffs’ right to possess these items might have on DOC
resources and on guards and DOC employees if other inmates
were to successfully file false liens.
Finally, as to whether there are alternatives to the
regulation, the plaintiffs argue that the defendants should have
waited until one of the plaintiffs filed a lien before taking action.
That assertion ignores the June 2005 DOC inmate filing.
Morever, prison administrators are not required to use the “least
restrictive means” possible to further legitimate penological
interests. See Thornburgh, 490 U.S. at 411. Additionally, we
reiterate the unique problem that these fraudulent financing
statements pose: Although the perpetrator can file the lien with
relative ease, the victim must go through a complicated ordeal,
such as to seek judicial action, in order to remove the lien. A
court order to expunge the lien does not end the ordeal, as
oftentimes the victim must then resolve his credit report, which
typically will have been damaged by the time he discovers that
the lien was filed. In light of the considerable time and expense
imposed by these UCC, redemption, and name “copyrighting”
schemes, we agree that requiring the DOC to accommodate
plaintiffs right by adopting a “wait and see” approach, rather
than by the pre-emptive measures they employed in this case,
would impose more than a “de minimis” cost to prison officials.
See Jones, 461 F.3d at 360. Therefore, we agree that this final
21
factor cuts in favor of the defendants.
Because the plaintiffs have not satisfied their burden of
showing that the defendants’ confiscation of their publications
and materials was constitutionally unreasonable, we conclude
that the District Court properly granted summary judgment in
favor of the defendants on this claim.
B. Due Process
The plaintiffs argue that prison officials violated their
Due Process rights by failing to afford them pre-deprivation
hearings before confiscating legal and other personal materials.
Moreover, they maintain that Due Process entitled them to
notice that the materials at issue had been deemed to be
contraband. Finally, they challenge the sufficiency of the
DOC’s post-deprivation procedure on the grounds that the
defendants have not adhered to their own grievance procedure
(DC-ADM 804).
Like other constitutional rights, the Due Process rights of
prisoners may be accommodated to a prison’s legitimate security
needs. See Bell v. Wolfish, 441 U.S. 520, 558-60 (1979).
“[A]n unauthorized intentional deprivation of property” by
prison officials does not violate the Due Process Clause “if a
meaningful postdeprivation remedy for the loss is available.”
Hudson v. Palmer, 468 U.S. 517, 533 (1984)(citing Parratt v.
Taylor, 451 U.S. 527 (1981)). Pre-deprivation notice is not
constitutionally required. See id.
22
Because prisons are constitutionally required to afford
inmates only a post-deprivation remedy, we agree that the
defendants’ failure to give the inmates prior notice of their
intended seizure of their materials notice did not violate the
plaintiffs’ Due Process rights. Id. We also agree that the DOC
furnished the plaintiffs with a meaningful post-deprivation
remedy. After prison officers raided plaintiffs’ cells and
confiscated their materials, Deputy Superintendent for Internal
Security Michael Lorenzo distributed a letter to the inmates
setting forth the DOC’s newly developed policy on
“publications, UCC filings, the redemption process, UCC forms
and tax forms used to file fraudulent liens.” The letter further
explained why the inmates’ materials were confiscated and
assured that non-contraband materials would be returned.
Additionally, it informed them that the DOC’s usual grievance
procedure was available to them, and it set forth a special
process for objecting to the seizures, explaining that an
“Unacceptable Correspondence Form,” or “Confiscated Items
Report” should be used to file objections to the search and to
give a legitimate reason for possessing the contraband items.
Although the plaintiffs allege that the defendants have
not adhered to their own procedure, they have not shown that
this post-deprivation procedure was not meaningful. Instead,
the record shows that the defendants gave plaintiffs three
opportunities (one by court order) to review materials and
receive back approved, non-contraband items. And, as the
Deputy Superintendent’s letter evidences, the plaintiffs had a
23
chance to give a legitimate, non-contraband reason for
possessing the UCC materials. Moreover, each of the inmates
met individually with Lieutenant John Moyer. Although a few
of the inmates received back non-contraband property, all of
plaintiffs patently refused to review or receive back those
materials. The plaintiffs do not refute that they received this
post-deprivation process and, in fact, they admit in their
appellate briefs that they have refused to accept back the non-
contraband materials.12 Finally, although the plaintiffs accuse
the defendants of having destroyed their materials, they do not
support this contention. Instead, the record reflects that the
materials remain securely stored in at SCI-Graterford’s Internal
Security Office.
Given their failure to oppose the defendants assertion that
they received a meaningful post-deprivation remedy, and
because the record supports that finding, we conclude that the
District Court correctly granted summary judgment on this
claim.
12
As the plaintiffs state in their Appellate Reply Brief: “If
appellant(s) would have accepted one item back from appelles
[sic] then appellees could argue that they returned the missing
items to appellant(s). But by appellant(s) refusing appellee’s
offer (according to appellees) appellees cannot argue that the
missing items were given back to appellants.”
24
V. Miscellaneous Claims
Finally, the plaintiffs argue that they are “unwilling
victims of Pennsylvania’s captive inmate market,” and that their
continued imprisonment within the DOC violates the Commerce
Clause and the Anti-Peonage Act. These arguments are plainly
meritless. Having considered all of the plaintiffs’ arguments,
we conclude that they are without merit, and, therefore, we will
affirm the District Court’s judgment. Plaintiffs’ motion for a
preliminary injunction and request for mandamus relief are
denied.13
13
Additionally, the plaintiffs suggest that Judge Stengel, who
presided over this case in the District Court, exhibited bias in
favor of defendants. However, plaintiffs do not argue, and we
find no evidence, that Judge Stengel actually exhibited bias
against plaintiffs or displayed any appearance of partiality in this
case. Accordingly, the plaintiffs’ request that we order Judge
Stengel to recuse himself is denied.
25