Bernard Jerry v. Jeffrey Beard , 419 F. App'x 260 ( 2011 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-3031
___________
BERNARD JERRY,
Appellant
v.
JEFFREY A. BEARD, Sec. of Corrs.; SUPT. KENNETH CAMERON;
MATTHEW KESSLER, Librarian; CAPTAIN PIROZOLLA;
ROBERT REID, Hearing Examiner; MRS. REIFER, Grievance Coordinator;
RICHARD LYNCH, Acting School Principal; CINDY WATSON, Chief Grievance
Officer; THREE (3) UNKNOWN PRC MEMBERS; LT. WILT
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 08-cv-00125)
District Judge: Honorable Kim R. Gibson
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 17, 2011
Before: BARRY, JORDAN AND GARTH, Circuit Judges
(Opinion filed March 22, 2011)
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OPINION
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PER CURIAM
Bernard Carter Jerry-El (“Jerry”), proceeding pro se, appeals the District Court‟s
order dismissing his civil rights complaint under Federal Rule of Civil Procedure
12(b)(6). For the reasons that follow, we will affirm in part, vacate in part, and remand
for further proceedings.
I
Jerry is a prisoner at SCI-Cresson, in Cresson, Pennsylvania. In 2008, in the
prison library, Jerry made photocopies of “Pinky Pigg,” a children‟s book he wrote, with
the purpose of submitting the copies to the Library of Congress to obtain copyright
privileges. He also had with him a folder and documents from Author House, a company
that provides information and services for authors to publish their work. Defendant-
Appellee Kessler, the prison librarian, saw Jerry with these materials and confiscated
them, apparently because he believed Jerry was attempting to use the copyright process
as part of a well-known scheme to harass the courts and prisons. Kessler then issued
Jerry a confiscation slip and a misconduct.
About two weeks later, Jerry received a misconduct hearing. The hearing
examiner concluded that Jerry‟s conduct constituted an attempt to engage in business
activity in violation of prison regulations, found him guilty of the charges -- at a reduced
offense level -- and issued Jerry a warning. Jerry filed an appeal to the Program Review
Committee, challenging the misconduct finding and seeking return of his materials,
including “Pinky Pigg.” That appeal was denied.
In the meantime, Jerry filed an informal grievance seeking return of his
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documents, followed by a formal grievance seeking return of the materials and alleging
that Kessler was harassing and/or retaliating against him for a previous grievance he had
filed. Jerry‟s grievance was denied, and he unsuccessfully appealed that decision through
the Department of Corrections‟ (“DOC”) grievance system. The Secretary‟s Office
ultimately concluded that Kessler properly confiscated the materials because of his
concerns about copyright and UCC violations, and held that there was no evidence
supporting Jerry‟s claims of retaliation or harassment. That decision also suggested that
“Pinky Pigg” had been returned to Jerry, which Jerry denies.
Jerry then filed in the District Court a complaint under 42 U.S.C. § 1983. He
alleged that Kessler violated his First and Fourteenth Amendment rights by confiscating
his documents, and that Kessler retaliated against him, in violation of the First
Amendment. Jerry also alleged that Kessler and various officials and employees of the
DOC committed extortion, harassment, falsification of documents, obstruction of justice,
theft by deception, racketeering, and discrimination; that they covered up the truth about
the allegedly unlawful confiscation of Jerry‟s story; and that Secretary Beard was liable
for failing to properly train DOC officials and employees. Jerry sought damages and
various forms of injunctive relief, including an order directing the DOC to cease
interfering with Jerry‟s (and other inmates‟) rights in self-authored materials. The
Defendants filed a motion to dismiss, which the Magistrate Judge recommended granting.
The District Court granted the motion to dismiss over Jerry‟s objections. Jerry‟s motion
3
for reconsideration, submitted as a motion for rehearing en banc, was denied, and he filed
a timely notice of appeal.
II
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we may affirm on any
grounds supported by the record. See Hughes v. Long, 242 F.3d 121, 122 n.1 (3d Cir.
2001). We review de novo a district court‟s decision to dismiss a complaint for failure to
state a claim upon which relief may be granted. See Dique v. New Jersey State Police,
603 F.3d 181, 188 (3d Cir. 2010). “In deciding a motion to dismiss, all well-pleaded
allegations of the complaint must be taken as true and interpreted in the light most
favorable to the plaintiffs, and all inferences must be drawn in favor of them.” McTernan
v. City of York, 577 F.3d 521, 526 (3d Cir. 2009) (internal citation and quotation marks
omitted). To withstand a Rule 12(b)(6) motion to dismiss, “a complaint must contain
sufficient factual matter, accepted as true, to „state a claim to relief that is plausible on its
face.‟” Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
We first consider Jerry‟s argument that the DOC violated his constitutional rights
by confiscating his story and preventing him from registering that story with the Library
of Congress. The District Court reasoned that the sole function of a copyright is to
enable an author to commercially exploit his creations. Thus, in the District Court‟s
view, Jerry‟s attempt to register his story amounted to an attempt to engage in business
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activities, which a prisoner has no right to do. Cf. French v. Butterworth, 614 F.2d 23, 24
(1st Cir. 1980) (holding that a prisoner has no Fourteenth Amendment right -- nor any
other constitutional right -- to engage in business activities). We disagree with the
District Court‟s analysis.
Although a prisoner has no right under the Constitution or federal law to engage in
business, and one function of copyright is to allow the creator of a work to do so, we
think the District Court‟s analysis was too narrow. The Copyright Act of 1976, 17 U.S.C.
§§ 101, et seq., affords the author of a literary work limited exclusive control over that
work, including the right to prevent others from commercially exploiting the work. See
17 U.S.C. § 106; A.V. ex rel. Vanderhye v. iParadigms, LLC, 562 F.3d 630, 636 (4th Cir.
2009). This right vests the moment the author commits the story to paper. See 17 U.S.C.
§ 302. Under § 407 of the Act, a copyright holder may register his work with the Library
of Congress to obtain additional protections against infringement. It does not appear that
exercising this right necessarily constitutes engaging in a business activity. Taking as
true Jerry‟s assertion that his story was never returned -- and perhaps was destroyed -- he
may be able to assert a claim under the Copyright Act against the DOC for interfering
with his ability to protect his copyright through registration with the Library of Congress.
We decline to make that determination in the first instance, and will vacate the District
Court‟s order as to the copyright claim and will remand for further proceedings.1
1
The District Court construed Jerry‟s complaint as also raising a claim against the
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Jerry also claimed that Kessler confiscated his materials to harass and/or retaliate
against him for a previous grievance. Section 1983 imposes liability for retaliatory
conduct by prison officials if the conduct was motivated “in substantial part by a desire to
punish [the] individual for the exercise of a constitutional right,” Allah v. Seiverling, 229
F.3d 220, 224 (3d Cir. 2000) (quoting Thaddeus-X v. Blatter, 175 F.3d 378, 386 (6th Cir.
1999) (en banc)), such as filing lawsuits and grievances related to incarceration. See
Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003); Milhouse v. Carlson, 652 F.2d 371,
373 (3d Cir. 1981). To prevail on a § 1983 retaliation claim, the prisoner must prove:
(1) that the conduct leading to the alleged retaliation was constitutionally protected;
(2) that he suffered an adverse action sufficient to deter a person of ordinary firmness
from exercising his constitutional rights; and (3) that his protected conduct was a
substantial or motivating factor in the decision to discipline him. See Rauser v. Horn,
241 F.3d 330, 333 (3d Cir. 2001). However, “prison officials may still prevail by proving
that they would have made the same decision absent the protected conduct for reasons
DOC for upholding in administrative proceedings the confiscation of his materials.
To the extent that Jerry intended to include such an argument, it was not cognizable.
See Edwards v. Balisok, 520 U.S. 641, 646-48 (1997). Accordingly, dismissal was
appropriate. In addition, the District Court correctly dismissed Jerry's claim that he
was deprived of due process by the confiscation of “Pinky Pigg.” As the Court
observed, Jerry complains of a loss of personal property, of which his claimed interest
in “Pinky Pigg” is a species, and the post-deprivation remedies available to Jerry
under the prison grievance procedure and Pennsylvania law constitute adequate
process. See Monroe v. Beard, 536 F.3d 198, 210 (3d Cir. 2008) (“prisons are
constitutionally required to afford inmates only a post-deprivation remedy”).
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reasonably related to a legitimate penological interest.” Id. at 334. The District Court
dismissed Jerry‟s retaliation claim, reasoning that the multiple grievance decisions in the
record supporting Kessler‟s confiscation of Jerry‟s materials constituted sufficient
evidence to demonstrate that Kessler would have taken the same action irrespective of
any desire to harass or retaliate against Jerry. The standard applied by the District Court,
arguably appropriate at the summary judgment stage, was incorrectly applied to the
defendants‟ motion to dismiss. The question before the District Court was whether Jerry
stated a claim upon which relief could be granted. Based on the pleadings, we conclude
that Jerry made out a prima facie case of retaliation; dismissal was therefore
inappropriate. Accordingly, we will vacate the District Court‟s order as to the retaliation
claim and will remand for further proceedings.
We turn next to Jerry‟s claims for relief that were not addressed by the District
Court.2 The Defendant-Appellees devote seven of the eight pages in the Argument
section of their brief to the contention that, because Jerry failed to administratively
exhaust these claims, they are waived. They are wrong. Although the PLRA requires
prisoners to exhaust available administrative remedies before filing a civil action, see 42
U.S.C. § 1197e(a), exhaustion is an affirmative defense, which may be waived if not
pleaded by the defendant. See Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002). The
2
As explained above, these were: extortion, falsification of documents, obstruction
of justice, theft by deception, racketeering, and discrimination; that they covered up
the truth about the allegedly unlawful confiscation of Jerry‟s story; and that Secretary
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Defendant-Appellees did not raise in the District Court any objection to Jerry‟s claims as
unexhausted. Accordingly, any such objections are considered waived. Nevertheless,
dismissal of those claims by the District Court would have been appropriate because
Jerry offered nothing more than conclusory allegations concerning the Defendant-
Appellees‟ conduct, which were insufficient to state claims for relief. See Iqbal, 129 S.
Ct. at 1949. On remand, the District Court shall consider whether Jerry should be granted
leave to amend his complaint as to these claims. See Grayson v. Mayview State Hosp.,
293 F.3d 103, 108-09 (3d Cir. 2002).
Finally, having reviewed the due process claim, and recognizing that we are
vacating and remanding as to the other claims, and additionally remanding for
consideration as to whether Jerry should be granted leave to amend his complaint on at
least some claims, we see no reason to address the District Court‟s denial of Jerry‟s
motion for reconsideration.
Accordingly, we will affirm the judgment of the District Court in part, vacate in
part, and remand for further proceedings. Jerry‟s motion to expedite disposition of his
appeal is denied as unnecessary.
Beard was liable for failing to properly train DOC officials and employees.
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