Gordon v. Morton , 131 F. App'x 797 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
5-10-2005
Gordon v. Morton
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4754
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Recommended Citation
"Gordon v. Morton" (2005). 2005 Decisions. Paper 1223.
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CPS-168 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-4754
________________
STEVEN R. GORDON,
Appellant
v.
WILLIS MORTON, WARDEN; JOHN DOE(S), CORRECTIONAL OFFICER(S) AT BUCKS
COUNTY CORRECTIONAL FACILITY; J. W. BAILIE; M. A. POULSON; C. C. BURNS; H.
C. LIVERMAN
_______________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 03-cv-04060)
District Judge: Honorable Harvey Bartle, III
_______________________________________
Submitted Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
March 10, 2005
BEFORE: ALITO, McKEE and AMBRO, CIRCUIT JUDGES
(Filed: May 10, 2005)
_______________________
OPINION
_______________________
PER CURIAM
Appellant Steven Gordon appeals from the District Court’s orders granting
Defendants’ motions for summary judgment and denying the appointment of counsel.
Gordon filed a complaint, which the District Court presumed was pursuant to 42 U.S.C. §
1983, seeking monetary damages for the alleged denial of access to the courts in violation
of the First Amendment. Because no substantial question is presented, L.A.R. 27.4, we
will summarily affirm the District Court’s order.
On June 13, 2002, Gordon was transferred to Bucks County Correctional Facility
to await a Post Conviction Relief Act (PCRA) hearing scheduled for June 17th. Gordon
claims correctional officers Burns, Poulson, and Bailie confiscated his legal materials,
and that defendants Morton and Liverman later acquiesced to the conduct. On the
morning of the hearing, Gordon requested his legal materials, but they were not supplied.
The hearing still took place as scheduled.
On June 22, 2002, Gordon filed an inmate request form for the return of the
material among other items. Warden Morton responded, yet failed to address that aspect
of the request. On July 2, 2003, the materials were returned. Gordon’s PCRA petition
was subsequently denied, but the Superior Court remanded for a new hearing because his
PCRA counsel was ineffective. Upon rehearing, the PCRA Court denied relief. Gordon
did not appeal.
Meanwhile, Gordon brought a § 1983 claim in the District Court alleging a denial
of access to the courts. The District Court granted the Defendants’ motions for summary
judgment. It held that Gordon failed to show actual injury with respect to the claim
against the correctional officers and could not show supervisory liability with respect to
Morton and Liverman. Gordon then filed this appeal.
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We exercise plenary review over a District Court’s grant of summary judgment.
Oliver v. Fauver, 118 F.3d 175, 177 (3d Cir. 1997). A claimant seeking damages for the
denial of access to the courts must “demonstrate that the alleged” deprivation of legal
material “hindered his efforts to pursue a legal claim.” Lewis v. Casey, 518 U.S. 343,
351 (1996). To succeed, Lewis does not require that a claim would have been successful,
see, e.g., Walters v. Edgar, 163 F.3d 430, 434 (7th Cir. 1998), but merely requires the
claimant to show that the deprivation led to an actual injury “such as the loss or rejection
of a legal claim.” See Oliver, 118 F.3d at 177.
The actual injury requirement is derived from the constitutional principle of
standing. Lewis, 518 U.S. at 349. In this context, a claim premised upon an argument
that the alleged deprivation hindered the presentation of a frivolous claim is not sufficient
to entitle relief. See id. at 350 (comparing a similar situation with that of a healthy inmate
who is denied access to medical care); Walters, 163 F.3d at 434-35. See also Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992) (requiring injury to be actual or
imminent, not hypothetical or conjectural).
To the extent Gordon implies possible injury, the second PCRA Court held that
none of Gordon’s claims were cognizable under the PCRA. See Commonwealth v.
Gordon, No. 2000-3646, slip op. at 2 (Pa. C. Dec. 10 2003). Gordon does not argue that
he desired to present different or additional claims at his first PCRA hearing. Because we
do not generally second guess state court decisions interpreting matters of state law, see
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Michigan v. Long, 463 U.S. 1032, 1040 (1983), Gordon has not sufficiently demonstrated
actual injury to establish his claim against the corrections officers. Additionally, because
Gordon fails to demonstrate he suffered a constitutional violation, he cannot satisfy any
theory of supervisory liability. See A.M. ex rel. J.M.K. v. v. Luzerne County Juvenile
Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004).
Additionally, the District Court did not abuse its discretion in denying Gordon’s
motion for the appointment of counsel. See Parham v. Johnson, 126 F.3d 454, 457 (3d
Cir. 1997). The District Court initially granted Gordon’s motion on September 8, 2003,
but denied the motion a year later after failing to find counsel willing to accept the
appointment. The District Court cannot require counsel to represent an indigent claimant.
See Tabron v. Grace, 6 F.3d 147, 153 n.1 (3d Cir. 1993). Further, because Gordon’s
claim is meritless, the District Court did not abuse its discretion in eventually denying the
motion and the order is affirmed. See id. at 155 (stating that a threshold inquiry is
whether the claim has merit).
For the foregoing reasons, no substantial question is presented and we will affirm
the order of the District Court granting the Defendants’ motions for summary judgment.
Appellant’s motion for appointment of counsel on appeal is denied.
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