Johnson v. Atty Gen USA , 187 F. App'x 154 ( 2006 )


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  •                                                                                                                            Opinions of the United
    2006 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    6-28-2006
    Johnson v. Atty Gen USA
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 05-5053
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    Recommended Citation
    "Johnson v. Atty Gen USA" (2006). 2006 Decisions. Paper 823.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2006/823
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No: 05-5053
    JOSEPH JOHNSON, JR.,
    Appellant
    v.
    ATTORNEY GENERAL OF THE UNITED STATES;
    MR. BINGAMAN; CRYSTAL FAUST;
    ROD L. KERSTETTER
    _______________
    On Appeal From the United States District Court
    For the Middle District of Pennsylvania
    (D.C. Civ. No. 03-cv-00756)
    District Judge: Honorable William J. Nealon
    _______________________________________
    Submitted Under Third Circuit L.A.R. 34.1(a)
    June 23, 2006
    BEFORE: SLOVITER, SMITH and VAN ANTWERPEN, CIRCUIT JUDGES
    (Filed: June 28, 2006)
    _______________________
    OPINION
    _______________________
    PER CURIAM
    Appellant Joseph Johnson appeals from the District Court order dismissing his
    civil rights claim brought under Bivens v. Six Unknown Named Agents on the Federal
    Bureau of Narcotics, 
    403 U.S. 388
    (1971). His appeal asks us to decide whether
    negligent interference by prison officials states a claim for denial of access to the courts.
    For the reasons that follow, we will affirm the order of the District Court.
    I.
    The parties are familiar with the facts; thus, we only briefly recite them here. In
    2002, Johnson was incarcerated at USP-Lewisburg in Pennsylvania. On July 26 or 27 of
    that year, Johnson placed an envelope containing a pro se petition for appeal of a criminal
    conviction to Virginia Supreme Court in the prison mail deposit box. The time to file his
    petition for appeal expired on July 29, 2002. Johnson alleges that he specifically placed
    the appeal in the prison mail with the understanding that the mail would be removed on
    the morning of July 29, 2002, and date-stamped accordingly, thereby making his appeal
    timely. Johnson attached a “cop-out,” or notice, to the envelope alerting the prison staff
    that the document needed to be post-marked by July 29. Although Defendant Bingaman
    admits that he was responsible for removing the mail from the deposit box on July 29, for
    whatever reason the prison post-marked the petition for appeal July 30, 2002. The
    Virginia Supreme Court rejected the petition as untimely. Johnson attempted to rectify
    the situation, but to no avail.
    After exhausting his administrative remedies, Johnson filed the current combined
    Bivens and Federal Tort Claims Act (FTCA) complaint.1 In a nutshell, Johnson alleged
    that he is entitled to monetary damages under the FTCA because prison employees were
    negligent in failing to post-mark the petition for appeal July 29, 2002. He also argued
    1
    Johnson also filed an amended complaint, dropping Crystal Faust as a defendant.
    2
    that Bingaman is liable under Bivens for abridging his access to the courts and Kerstetter
    is liable under a theory of respondeat superior.
    In an order entered September 24, 2004, the District Court granted in part and
    denied in part the Defendants’ motion to dismiss. It concluded that 28 U.S.C. § 2680(b)
    exempts the current action from the FTCA by excluding claims “arising out of the loss,
    miscarriage, or negligent transmission of letters or postal matter.” It also dismissed the
    claim against Kerstetter because a civil rights complaint cannot be based on supervisory
    liability. It allowed the Bivens action against Bingaman to continue. The District Court
    eventually dismissed the complaint for failure to state a claim, concluding that a claim for
    the denial of access to the courts cannot be supported by allegations of negligence.
    Johnson appeals.2
    II.
    In his pro se brief, Johnson abandons his Bivens claim against Kerstetter and those
    claims arising under the FTCA. See United States v. Pelullo, 
    399 F.3d 197
    , 222 (3d Cir.
    2005) (stating it is well-settled that failure to raise or identify an issue in a brief waives
    the issue on appeal). He challenges only the District Court’s conclusion that negligent
    conduct is not sufficient to support a claim for the denial of access to the courts.
    The District Court’s order dismisses the complaint for failure to state a claim,
    invoking the language of Federal Rule of Civil Procedure 12(b)(6). However, the District
    2
    We have jurisdiction under 28 U.S.C. § 1291.
    3
    Court was presented with and considered evidence outside of the pleadings. We are
    constrained, therefore, to treat the decision as the grant of summary judgment under Rule
    56, see Ford Motor Co. v. Summit Motor Prods., Inc., 
    930 F.2d 277
    , 284 (3d Cir. 1991),
    and we exercise de novo review. See Wastak v. Lehigh Valley Health Network, 
    342 F.3d 281
    , 285 (3d Cir. 2003).
    The right to access the courts, which although not clearly found within any single
    constitutional provision, is nonetheless well-established. See Bounds v. Smith, 
    430 U.S. 817
    , 824-25 (1977); Gibson v. Superintendent of N.J. Dep’t Law and Pub. Safety Div. of
    State Police, 
    411 F.3d 427
    , 442 (3d Cir. 2005). Although Bivens and 42 U.S.C. § 1983
    do not require any particular state of mind “‘requirement independent of that necessary to
    state a violation of the underlying constitutional right,’ . . . not all acts are
    unconstitutional simply because of the result.” See 
    Gibson, 411 F.3d at 445
    (quoting
    Daniels v. Williams, 
    474 U.S. 327
    , 330 (1986)). The Supreme Court in Daniels was
    called to consider whether a negligent due process deprivation could constitute a
    constitutional violation. The Court concluded that the Fourteenth Amendment was not
    designed to supplant traditional tort law and, thus, does not encompass protection from
    negligent governmental acts. 
    Daniels, 474 U.S. at 332-33
    .
    In Gibson, we extended Daniels to a case where a complainant alleged that New
    Jersey police officials denied his access to the courts by failing to disclose relevant racial
    profiling information that could have led to an early release from custody. 
    Id. at 444.
    Specifically, we held that an official may be liable only if she “wrongfully and
    4
    intentionally” conceals information. 
    Id. Other courts
    to consider similar issues have
    agreed with this position. See Pink v. Lester, 
    52 F.3d 73
    , 74 (4th Cir. 1995); Kincaid v.
    Vail, 
    969 F.2d 594
    , 601-03 (7th Cir. 1992).
    The distinctions between the conduct at issue in Gibson and that at issue here is of
    little constitutional significance. Both suits challenge prior instances of negligent official
    conduct that had the unfortunate result of obstructing or eliminating the ability to bring a
    claim, suit, or appeal. Even if the right to access the courts were exclusively founded on
    First Amendment (as we note above, it is not) the rationale employed in Daniels applies
    with equal force. See 
    Pink, 52 F.3d at 76
    (citing McDonald v. Smith, 
    472 U.S. 479
    , 482-
    83 (1985)) (explaining that to permit recovery for negligent acts would greatly expand the
    scope of the First and Fourteenth Amendments).
    Johnson has failed to show that Bingaman intentionally or deliberately prevented
    his mail from being accurately dated. Accordingly, we will affirm the order of the
    District Court. Appellant’s motion to strike the Appellees’ brief is denied. See Fed. R.
    App. P. 31©.
    5