Heleva v. Walter

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DANIEL HELEVA, : CIVIL ACTION NO. 1:20-CV-1983

:

Plaintiff : (Judge Conner)

:

v. :

:

FAITH WALTER, D. HINE, KATHY :

BRITTEN, DORINA VARNER, :

:

Defendants :

MEMORANDUM

Plaintiff Daniel Heleva (“Heleva”), an inmate confined at the State

Correctional Institution, Frackville, Pennsylvania, commenced this action

pursuant to 42 U.S.C. § 1983 asserting that defendants interfered with his right

to communicate with the courts. (Doc. 1). Named as defendants are Mailroom

Supervisor Faith Walter, Mailroom Employee D. Hine, Superintendent Kathy

Britten, and Chief Grievance Officer Dorina Varner. Defendants move for summary

judgment pursuant to Federal Rule of Civil Procedure 56. (Doc. 28). We will grant

defendants’ motion and enter judgment in their favor.

I. Factual Background & Procedural History1

On December 21, 2018, Heleva attempted to mail a notice of default and

request to cure to the Monroe County Courthouse. (Doc. 30 ¶ 1; Doc. 34 ¶ 1). Heleva

requested a tracking number on his cash slip. (Doc. 30 ¶ 2; Doc. 34 ¶ 2). The cash

slip was returned to Heleva indicating that this type of mail is not assigned a

tracking number. (Id. ¶ 3). This piece of mail was mailed. (Id. ¶ 4).

On December 31, 2018, Heleva mailed another piece of legal mail. (Id. ¶ 5).

Defendants maintain that the cash slip was returned with a note from defendant

Hine stating that if Heleva wanted a tracking number on the envelope, it must be

sent out priority or certified mail. (Doc. 30 ¶ 6). Heleva contends that the “entire”

package was returned. (Doc. 34 ¶ 6). Defendant Hine’s note also listed the price for

both priority and certified mail. (Doc. 30 ¶ 7; Doc. 34 ¶ 7). Heleva then sent this

piece of mail through a family member. (Doc. 30 ¶ 8; Doc. 34 ¶ 8; Doc. 36 at 21).

Heleva wrote a request to staff member for an explanation as to why he could not

get a free tracking number. (Doc. 30 ¶ 9; Doc. 34 ¶ 9). Captain Reese responded that

the mailroom supervisor informed him that tracking numbers are no longer

1 Local Rule 56.1 requires that a motion for summary judgment pursuant to

Federal Rule of Civil Procedure 56 be supported “by a separate, short, and concise

statement of the material facts, in numbered paragraphs, as to which the moving

party contends there is no genuine issue to be tried.” LOCAL RULE OF COURT 56.1.

A party opposing a motion for summary judgment must file a separate statement of

material facts, responding to the numbered paragraphs set forth in the moving

party’s statement and identifying genuine issues to be tried. Id. Unless otherwise

noted, the factual background herein derives from the parties’ Rule 56.1 statements

of material facts. (See Docs. 30, 34). To the extent the parties’ statements are

undisputed or supported by uncontroverted record evidence, the court cites

directly to the statements of material facts.

assigned unless the mail is certified mail. (Id. ¶ 10). Defendants contend that

Heleva did not have any issues with his mail after the December 31, 2018 return.

(Doc. 30 ¶ 11). Heleva explains that this piece of mail was returned on January 3,

2019, and, after its return, he stopped requesting tracking numbers, stopped

sending mail to the Monroe County Courthouse and, instead, sent mail through

family members. (Doc. 34 ¶ 11).

Heleva named defendants Britten and Varner solely based on their roles in

the grievance process. (Doc. 30 ¶ 12; Doc. 34 ¶ 12). Nonetheless, Heleva asserts that

defendants Britten and Varner were aware of the purported unconstitutional and

criminal conduct and acquiesced in the conduct. (Doc. 34 ¶ 12).

II. Legal Standard

Through summary adjudication the court may dispose of those claims that do

not present a “genuine issue as to any material fact” and for which a jury trial

would be an empty and unnecessary formality. See FED. R. CIV. P. 56(a). The

burden of proof is upon the non-moving party to come forth with “affirmative

evidence, beyond the allegations of the pleadings,” in support of its right to relief.

Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); FED. R. CIV. P.

56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This evidence

must be adequate, as a matter of law, to sustain a judgment in favor of the non-

moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986);

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986); see

also FED. R. CIV. P. 56(a), (e). Only if this threshold is met may the cause of action

proceed. Pappas, 331 F. Supp. 2d at 315.

III. Discussion

A. 18 U.S.C. § 1726

Heleva sets forth a claim pursuant to 18 U.S.C. § 1726. (Doc. 1 at 16). Section

1726 of Title 18 provides as follows:

Whoever, being a postmaster or other person authorized to receive the

postage of mail matter, fraudulently demands or receives any rate of

postage or gratuity or reward other than is provided by law for the

postage of such mail matter, shall be fined under this title or

imprisoned not more than six months, or both.

18 U.S.C. § 1726. Title 18 of the United States Code is a federal criminal statute that

does not create civil liability or a private cause of action. Generally, federal criminal

statutes do not provide a basis for civil liability. See Brown v. City of Phila. Office of

Human Res., 735 F. App’x 55, 56 (3d Cir. 2018) (per curiam) (nonprecedential)

(holding criminal statutes generally do not give rise to a private cause of action.”);

see also Dugar v. Coughlin, 613 F. Supp. 849, 852 n.1 (S.D.N.Y. 1985) (holding

prisoner could not sue under 18 U.S.C. § 1726 nor use that statute as a predicate for

an action under 42 U.S.C. § 1983).2 Heleva’s reliance on a federal criminal statute—

18 U.S.C. § 1726—is entirely misplaced and defendants’ motion will be granted with

respect this claim.

B. Defendants Britten and Varner

Individual liability can be imposed under section 1983 only if the state actor

played an “affirmative part” in the alleged misconduct and “cannot be predicated

2 The court acknowledges that nonprecedential decisions are not binding

upon federal district courts. Citations to nonprecedential decisions reflect that the

court has carefully considered and is persuaded by the panel’s ratio decidendi.

solely on the operation of respondeat superior.” Evancho v. Fisher, 423 F.3d 347,

353 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998)).

“A defendant in a civil rights action must have personal involvement in the alleged

wrongs. . . . Personal involvement can be shown through allegations of personal

direction or of actual knowledge and acquiescence.” Rode, 845 F.2d at 1207-08; see

also Rizzo v. Goode, 423 U.S. 362 (1976); Atkinson v. Taylor, 316 F.3d 257 (3d Cir.

2003). Such allegations, however, must be made with appropriate particularity in

that a complaint must allege the particulars of conduct, time, place, and person

responsible. Evancho, 423 F.3d at 354; Rode, 845 F.2d at 1207-08. Alleging a mere

hypothesis that an individual defendant had personal knowledge or involvement in

depriving the plaintiff of his rights is insufficient to establish personal involvement.

Rode, 845 F.2d at 1208.

Heleva attempts to hold defendant Britten liable based on her supervisory

role. (Doc. 1 at 17; Doc. 34 at 5). He asserts that “Defendant Superintendent Kathy

Britten condoned the acts of D. Hine and Faith Walter.” (Doc. 1 at 17). It is well-

established that officials may not be held liable for unconstitutional conduct of their

subordinates under a theory of respondeat superior. See Rode, 845 F.2d at 1207.

Accordingly, insofar as Heleva’s claims against defendant Britten rely on a

respondeat superior theory of liability, she is entitled to judgment as a matter of law.

Next, Heleva attempts to hold defendants Britten and Varner liable based on

their involvement in the grievance procedure. (Doc. 1 at 17-18; Doc. 34 at 5). This

claim also fails. At his deposition, defense counsel asked Heleva the following

question: “[s]o when you named Kathy Britten and Dorina Varner, is it in

connection with the grievance and that process.” (Doc. 30-1 at 13, Deposition of

Daniel Heleva (“Heleva Dep.”), Notes of Transcript (“N.T.”) 41:8-10). Heleva

responded, “[a]bsolutely.” (Id. at 13, N.T. 41:11). Courts have routinely held that

the “failure of a prison official to provide a favorable response to an inmate

grievance is not a federal constitutional violation.” Flanagan v. Shively, 783 F.

Supp. 922, 931-32 (M.D. Pa. 1992), aff’d, 980 F.2d 722 (3d Cir. 1992). Dissatisfaction

with responses to an inmate’s grievances does not support a constitutional claim.

See Alexander v. Gennarini, 144 F. App’x 924 (3d Cir. 2005) (nonprecedential)

(concluding that involvement in the post-incident grievance process is not a basis

for § 1983 liability). Because the claims against defendants Britten and Varner are

premised on their respective roles in the grievance process, they are entitled to an

entry of judgment in their favor.

C. First Amendment Claim

Heleva asserts that defendants violated his “First Amendment right to

communicate with the courts” by returning a piece of mail due to inadequate

postage. (Doc. 1 at 3; see also Doc. 34 at 4-6). In Bounds v. Smith, 430 U.S. 817

(1977), the Supreme Court recognized a prisoner’s limited right of access to the

courts. Prisoners are not necessarily “capable of filing everything” but have a right

of access to “attack their sentences, directly or collaterally, and in order to

challenge the conditions of their confinement.” Lewis v. Casey, 518 U.S. 343, 355

(1996). “The right of access to the courts must be adequate, effective and

meaningful and must be freely exercisable without hindrance or fear of retaliation.”

Milhouse v. Carlson, 652 F.2d 371, 374 (3d Cir. 1981) (internal citations omitted).

Following Lewis, courts have consistently recognized that such claims require some

proof of an actual, concrete injury, in the form of direct prejudice to the plaintiff in

the pursuit of some legal claim. See Oliver v. Fauver, 118 F.3d 175 (3d Cir. 1997).

An inmate must demonstrate “(1) that they suffered an actual injury—that they lost

a chance to pursue a non-frivolous 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.” Monroe v. Beard, 536 F.3d 198, 205 (3d

Cir. 2008) (quoting Christopher v. Harbury, 536 U.S. 403, 415 (2002)) (internal

quotations omitted).

Heleva complains that mail he sent to the Monroe County Courthouse was

returned to him with an explanation that if he wanted a tracking number, it must be

sent out priority or certified mail. Heleva then mailed the document through a

family member and “had to take [this] extra step[] to ensure that [the] document

was timely.” (Doc. 30-1 at 6, Heleva Dep., N.T. 10:19-22). During Heleva’s

deposition, defense counsel posed the following statement to him: “[n]ow, sir, if I’m

understanding you correctly, you did not have an issue after this one time.” (Id. at

11, N.T. 32:15-16). In response, Heleva stated, “[n]o,” as he stopped requesting

tracking numbers. (Id. at 11, N.T. 32:17). Thus, this discrete complaint about the

return of one piece of legal mail, which merely delayed Heleva’s outgoing mail, does

not state a claim of constitutional dimension. Indeed, the United States Court of

Appeals for the Third Circuit has expressly rejected such a claim and held that

inmate civil rights are not implicated in isolated instances where “the mailing or

delivery of [prisoner] legal mail was delayed for a few days.” Blanchard v. Fed.

Bureau of Prisons, 428 F. App’x 128, 130 (3d Cir. 2011) (nonprecedential).

More importantly, Heleva has not established that “he lost the opportunity

to pursue a nonfrivolous or arguable underlying legal claim due to the actions of

defendants.” Id. at 130 (citing Monroe, 536 F.3d at 205-06). Heleva admits that after

his mail was returned to him due to inadequate postage, he successfully mailed the

correspondence to the Monroe County Courthouse through a family member. In

failing to establish actual injury or some legal loss, Heleva fails to demonstrate that

defendants’ conduct imposed a substantial impact on him. See Monroe, 536 F.3d at

205-06 (stating that the complainant in an access to the courts claim “must describe

the underlying arguable claim well enough to show that it is ‘more than mere hope’,

and it must describe the ‘lost remedy.’”) (citation omitted). Consequently,

defendants are entitled to summary judgment on the First Amendment claim.

IV. Conclusion

We will grant defendants’ motion (Doc. 28) for summary judgment in its

entirety. An appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER

Christopher C. Conner

United States District Judge

Middle District of Pennsylvania

Dated: April 5, 2022