Mbewe v. DelBalso

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CHRISTOPHER MBEWE, No. 4:21-CV-00654

Plaintiff, (Chief Judge Brann)

v.

THERESA A. DELBALSO, et al.,

Defendants.

MEMORANDUM OPINION

AUGUST 16, 2022

Plaintiff Christopher F. Mbewe is currently incarcerated at the State

Correctional Institution, Mahanoy (SCI Mahanoy), in Frackville, Pennsylvania. He

filed the instant pro se Section 19831 action in April 2021, claiming constitutional

violations by various SCI Mahanoy officials concerning the handling of his legal mail.

Presently pending is Defendants’ motion to dismiss Mbewe’s second amended

complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The Court will grant

Defendants’ motion to dismiss and will give Mbewe one final opportunity to state a

claim upon which relief may be granted.

1 42 U.S.C. § 1983. Section 1983 creates a private cause of action to redress constitutional

wrongs committed by state officials. The statute is not a source of substantive rights; it serves

as a mechanism for vindicating rights otherwise protected by federal law. See Gonzaga Univ.

I. BACKGROUND

Mbewe’s pleadings have gone through multiple iterations. He initially filed a

complaint in April 2021.2 Defendants moved to dismiss that complaint several

months later.3 Mbewe opposed the motion to dismiss,4 then moved for leave to

amend and included a proposed amended complaint.5 Defendants did not oppose

Mbewe’s motion to amend, so the Court granted the unopposed motion and docketed

his amended complaint.6

Defendants promptly moved to dismiss the amended complaint.7 Mbewe, as

before, both opposed the motion to dismiss8 and sought leave to file a second

amended complaint.9 The Court granted Mbewe leave to file a second amended

complaint.10

In his second amended complaint, which is now the operative pleading, Mbewe

alleges that SCI Mahanoy prison officials unlawfully opened his legal mail outside of

his presence and wrongfully confiscated legal mail that was critical to his state post-

conviction proceedings.11 He avers that there is an ongoing pattern at SCI Mahanoy

of prison officials interfering with legal mail or tacitly condoning such interference.12

2 Doc. 1.

3 Doc. 20.

4 See Docs. 21, 22.

5 Docs. 25, 25-1.

6 See Docs. 27, 28.

7 Doc. 29.

8 See Doc. 35.

9 See Docs. 36, 38.

10 See Doc. 38.

11 Doc. 36 ¶¶ 8-17.

He names as defendants Superintendent Theresa A. Delbalso, Captain Michael

Dunkle, Lieutenant Kyle Wall, and Correctional Officers Adam Crawford and Adam

Chapman.13 Mbewe invokes the First and Fourteenth Amendments as the

constitutional basis for his Section 1983 claims. He asserts in Count I that all

Defendants violated his “First and Fourteenth Amendment Rights” by interfering with

confidential legal communications “by opening, reading, copying, and destroying” his

legal mail.14 In Count II, Mbewe alleges that all Defendants violated the First and

Fourteenth Amendments by seizing, copying, reading, and confiscating his legal

mail.15

Defendants move to dismiss Mbewe’s second amended complaint in its

entirety.16 Defendants’ motion is fully briefed and ripe for disposition.

II. STANDARD OF REVIEW

In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),

courts should not inquire “whether a plaintiff will ultimately prevail but whether the

claimant is entitled to offer evidence to support the claims.”17 The court must accept

as true the factual allegations in the complaint and draw all reasonable inferences

from them in the light most favorable to the plaintiff.18 In addition to the facts alleged

on the face of the complaint, the court may also consider “exhibits attached to the

13 Id. ¶¶ 2-5.

14 See id. ¶¶ 29-40.

15 See id. ¶¶ 42-49.

16 See generally Docs. 39, 40.

17 Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see Nami v. Fauver, 82 F.3d 63, 66 (3d Cir.

1996).

complaint, matters of public record, as well as undisputedly authentic documents”

attached to a defendant’s motion to dismiss if the plaintiff’s claims are based upon

these documents.19

When the sufficiency of a complaint is challenged, the court must conduct a

three-step inquiry.20 At step one, the court must “tak[e] note of the elements [the]

plaintiff must plead to state a claim.”21 Second, the court should distinguish well-

pleaded factual allegations—which must be taken as true—from mere legal

conclusions, which “are not entitled to the assumption of truth” and may be

disregarded.22 Finally, the court must review the presumed-truthful allegations “and

then determine whether they plausibly give rise to an entitlement to relief.”23

Deciding plausibility is a “context-specific task that requires the reviewing court to

draw on its judicial experience and common sense.”24

Because Mbewe proceeds pro se, his pleadings are to be liberally construed and

his second amended complaint, “however inartfully pleaded, must be held to less

stringent standards than formal pleadings drafted by lawyers[.]”25 This is particularly

true when the pro se litigant, like Mbewe, is incarcerated.26

19 Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp.

v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993)).

20 Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (internal citations and

quotation marks omitted) (footnote omitted).

21 Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (alterations in original)).

22 Id. (quoting Iqbal, 556 U.S. at 679).

23 Id. (quoting Iqbal, 556 U.S. at 679).

24 Iqbal, 556 U.S. at 681.

25 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted).

III. DISCUSSION

Before addressing the sufficiency of the second amended complaint, the Court

must identify the claimed constitutional violations.27 Mbewe alleges First and

Fourteenth Amendment infringements, but it is difficult to determine exactly what

types of constitutional torts he is raising. As best the Court can ascertain, Mbewe is

asserting claims of (1) First and Fourteenth Amendment denial of access to the courts;

(2) First Amendment interference with legal correspondence in violation of free-

speech rights; and, possibly, (3) Fourteenth Amendment deprivation of property

without due process of law. Careful examination of these claims demonstrates that

Mbewe’s second amended complaint is deficient in numerous critical respects.

A. Fourteenth Amendment Deprivation of Property

Mbewe’s allegations in Count II could potentially be construed as claiming that

his personal property (i.e., legal mail and other correspondence) was wrongfully taken

by a state actor, thus implicating a Fourteenth Amendment claim of deprivation of

property without due process of law.28 This constitutional tort, however, has

significantly limited application. Most acutely, such a due process claim is

unavailable when “adequate state post-deprivation remedies are available.”29

27 See Albright v. Oliver, 510 U.S. 266, 271 (1994) (“The first step in any [Section 1983] claim

is to identify the specific constitutional right allegedly infringed.”); Graham v. Connor, 490

U.S. 386, 394 (1989) (explaining that analysis of a Section 1983 claim requires “identifying

the specific constitutional right allegedly infringed by the challenged” conduct).

28 See Hudson v. Palmer, 468 U.S. 517 530, 533 (1984).

Mbewe’s complaint is silent as to whether adequate state post-deprivation

remedies exist for the confiscation and alleged destruction of his legal mail and other

documents, but the Court notes that state tort law likely provides a remedy for claims

like those Mbewe is asserting.30 The United States Court of Appeals for the Third

Circuit has also held that the prison grievance process constitutes an adequate post-

deprivation remedy for claims like those asserted here, even if the plaintiff disagrees

with the results.31 Thus, if Mbewe is attempting to assert a Fourteenth Amendment

deprivation-of-property claim, that claim fails and must be dismissed with prejudice.

B. First Amendment Claims

Although a prisoner’s constitutional rights are necessarily circumscribed, an

inmate still retains First Amendment protections when they are “not inconsistent”

with prisoner status or with the “legitimate penological objectives of the corrections

system.”32 Mbewe appears to raise two different species of First Amendment

violations across Counts I and II of his second amended complaint.

30 See 42 PA. CONS. STAT. § 8522(a), (b)(3) (waiving state statutory sovereign immunity for

negligent acts related to the “care, custody or control of personal property in the possession or

control of Commonwealth parties”); see also Cruz v. SCI-SMR Dietary Servs., 566 F. App’x

158, 160 (3d Cir. 2014) (nonprecedential) (noting that district court correctly dismissed

Fourteenth Amendment due process property deprivation claim due to existence of state post-

deprivation remedies).

31 See Tillman v. Lebanon Cnty. Corr. Facility, 221 F.3d 410, 422 (3d Cir. 2000).

32 Wisniewski v. Fisher, 857 F.3d 152, 156 (3d Cir. 2017) (quoting Newman v. Beard, 617 F.3d

1. Denial of Access to the Courts

Under the First and Fourteenth Amendments to the United States Constitution,

“prisoners retain a right of access to the courts.”33 Inmates, however, may only

proceed on access-to-courts claims in two situations: “challenges (direct or collateral)

to their sentences and conditions of confinement.”34 To adequately plead an access-

to-courts claim that is backward-looking in nature,35 the prisoner must allege “(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.”36 The underlying claim must be described well enough to demonstrate that it is

“more than hope,” and the complaint must set out the “lost remedy.”37

Mbewe alleges that, in April 2019, he received a telephone call from Rasheeda

Johnson, a new eyewitness in his criminal proceedings, and that Defendants “pre-

opened, copied and destroyed” exculpatory correspondence from Johnson, causing

him to miss a state post-conviction deadline.38 Mbewe cites 42 PA. CONS. STAT. §

9545(b)(1), the provision of Pennsylvania’s Post Conviction Relief Act (PCRA) that

provides a one-year statute of limitations for filing a PCRA petition. Under

33 Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008) (citing Lewis v. Casey, 518 U.S. 343, 346

(1996)).

34 Id. (citing Lewis, 518 U.S. at 354-55).

35 There is also a category of access-to-courts claims that is forward-looking, in which plaintiffs

allege that “systematic official action frustrates a plaintiff or plaintiff class in preparing and

filing suits at the present time.” Christopher v. Harbury, 536 U.S. 403, 413 (2002).

36 Monroe, 536 F.3d at 205 (quoting Christopher, 536 U.S. at 415).

37 See Christopher, 536 U.S. at 416-17.

subsection (b)(1)(ii), a PCRA petition can be filed later than one year from the date

the criminal judgment becomes final when “the facts upon which the claim is

predicated were unknown to the petitioner and could not have been ascertained by the

exercise of due diligence.”39

Mbewe’s access-to-courts claim, while properly involving a collateral

challenge to a criminal sentence, is deficient in several respects. Although Mbewe

broadly claims that he missed the deadline to file a PCRA petition grounded in new

evidence, Mbewe has not plausibly pled facts showing how the purported interference

with his mail caused such a lengthy delay that the one-year PCRA limitations period

elapsed. For example, Mbewe does not allege when Johnson sent the letter, how he

came to know about the correspondence and that it was “destroyed,” or how long

Defendants possessed the correspondence without informing him. Additionally,

Mbewe has not pled facts showing that he has no other remedy for the purported loss.

He does not allege that he could not have filed a PCRA petition based on the

telephonic conversation with Johnson to preserve his statute of limitations while he

attempted to get a written statement.40 Nor does Mbewe allege that he filed a PCRA

petition based on this newly discovered evidence and it was denied as untimely. In

39 42 PA. CONS. STAT. § 9545(b)(1)(ii).

40 See 42 PA. CONS. STAT. § 9545(d)(1)(ii) (explaining that, should a petitioner seek an

evidentiary hearing, “[i]f a petitioner is unable to obtain the signature of a witness . . ., the

petitioner shall include a certification, signed by the petitioner or counsel, stating the witness’s

fact, Mbewe indicates in his second amended complaint that he currently has

“pending post-conviction petitions” in state court.41

Consequently, the Court must grant Defendants’ motion to dismiss, but will

permit Mbewe to amend his pleadings in the event that he can allege the requisite

facts to state a plausible access-to-courts claim. The Court admonishes Mbewe that, if

he attempts to re-plead an access-to-courts claim, he must identify the defendant or

defendants involved and specify the offending action taken by each purportedly liable

defendant. He must also address the specific deficiencies noted above and include all

factual allegations within his pleading, not in subsequent briefing.

2. Interference with Legal Mail

Mbewe’s primary claim appears to be that SCI Mahanoy officials are seizing,

opening, and copying his privileged legal mail outside of his presence, in violation of

his First Amendment free-speech rights. However, his second amended complaint, as

it currently stands, does not plausibly state such a claim.

The Third Circuit has recognized that inmates have a First Amendment free-

speech right in confidentiality with regard to attorney-client communication and court

41 Doc. 36 ¶ 30. Mbewe includes numerous additional facts regarding his access-to-courts claim

in his brief in opposition to the motion to dismiss that do not appear in the second amended

complaint. See Doc. 54 at 11-12. He avers, for example, that he was hindered in timely filing

a PCRA petition because Defendants confiscated legal correspondence and thus he was

unaware of Johnson’s eyewitness statement and the name of the attorney who sent it. Id. at

11. However, it is well settled that a plaintiff cannot amend his pleadings through a brief in

opposition to a motion to dismiss. See Frederico v. Home Depot, 507 F.3d 188, 201-02 (3d

Cir. 2007) (citing Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988)).

Mbewe must include his allegations in his complaint, not in a brief in opposition to a Rule

12(b)(6) motion. The Court further observes that Mbewe improperly relies on exhibits that

mail.42 Thus, when there is a “pattern and practice . . . of opening legal mail outside

the presence of the addressee inmate,” it “interferes with protected communications,

strips those protected communications of their confidentiality, and accordingly

impinges upon the inmate’s right to freedom of speech.”43 There does not need to be

an independent injury to assert such a First Amendment claim, as “protection of an

inmate’s freedom to engage in protected communications is a constitutional end in

itself.”44

The problem with Mbewe’s free-speech interference claim is that he

misunderstands the scope of privileged legal correspondence that is required to be

opened in the presence of an inmate. Under both Pennsylvania Department of

Corrections (DOC) policy and Jones v. Brown, privileged legal mail involves

confidential attorney-client communication and court mail.45 Importantly, under DC-

ADM 803, privileged legal mail must have an attorney or court “control number” on

the envelope indicating that it is privileged legal correspondence that must be opened

in the presence of the inmate.46 The presence of a control number is how prison

officials determine that the mail must be opened in the inmate’s presence and cannot

be read.

42 Jones v. Brown, 461 F.3d 353, 358-59 (3d Cir. 2006).

43 Id. at 359.

44 Id. at 360.

45 See id. at 358-59; COMMONWEALTH OF PA. DEP’T OF CORR., Policy Statement DC-ADM 803:

Inmate Mail & Incoming Publications, § 1(D)(3)(d) (2020) [hereinafter “DC-ADM 803”].

Mbewe alleges that Defendants have opened mail outside of his presence from

“Su Ming Yeh, Esq,” “Elizabeth Delosa Esq,” and Nicole R. Ditomo Esq.”47

However, he does not plausibly allege that he is represented by any of these attorneys

or that their correspondence contained attorney control numbers.48 Attorney DiTomo,

for example, is opposing counsel in the instant case. She does not represent Mbewe

and her correspondence to him is not “privileged” legal communication such that it

must be opened in his presence.49

Mbewe continually confuses privileged legal mail with general correspondence

concerning legal matters.50 Simply because mail is ostensibly from an attorney or a

legal nonprofit does not require prison officials to consider it privileged legal mail.

Rather, the DOC has explicitly developed a policy utilizing control numbers to

delineate between privileged legal mail (that must be opened in the presence of

inmates) and nonprivileged mail (which can be otherwise opened and inspected

outside of an inmate’s presence).51 To the extent that Mbewe is challenging the

47 Doc. 36 ¶¶ 39-40. Mbewe asserts that Attorney Delosa is from the “Innocen[ce] Project.” Id.

¶ 13.

48 In Mbewe’s brief in opposition to the motion to dismiss, he states that all the legal mail at issue

“came with [an] Attorney Control Number (ACN) or a Court Control Number (CCN)”

pursuant to DC-ADM 803 § 1(D)(1). Doc. 54 at 9. This assertion, however, does not appear

in his second amended complaint. As previously explained, Mbewe cannot amend his

pleadings through a brief in opposition to a motion to dismiss. Frederico, 507 F.3d at 201-02.

49 See generally DC-ADM 803 § 1(D).

50 See, e.g., Doc. 36 ¶ 30 (contending that mail to attorneys regarding “how he can act to preserve

or protect his legal rights” and “discovery responses” in the instant case qualify as “privileged

communications”).

constitutionality of this policy, the Third Circuit has already rejected such a

challenge.52

Mbewe also discusses a box of documents containing “over 6000 pages” of

trial and preliminary hearing transcripts, witness statements, affidavits, and new

evidence.53 He alleges that “for the past year” Defendants and their coworkers, “at the

behest of Defendants Delbalso and Dunkle,” have been repeatedly opening, copying,

and testing this legal mail outside of his presence.54 Again, however, Mbewe does not

identify who sent this box of legal materials, whether the sender was representing

him, or—most importantly—whether the package contained the requisite attorney

control number such that the documents could be identified by prison officials as

privileged attorney-client communication.

Without allegations that plausibly identify a First Amendment free-speech

violation by SCI Mahanoy officials, Mbewe cannot state a Section 1983 claim against

them. Nevertheless, because Mbewe may be able to cure his pleading deficiencies

and state a “pattern and practice” free-speech claim involving privileged legal mail,

the Court will grant him leave to amend.

IV. LEAVE TO AMEND

Generally, “in forma pauperis plaintiffs who file complaints subject to

dismissal under Rule 12(b)(6) should receive leave to amend unless amendment

52 See id. at 174, 182.

53 Id. ¶¶ 10-13.

would be inequitable or futile.”55 Mbewe’s Fourteenth Amendment deprivation-of-

property claim will be dismissed with prejudice because leave to amend would be

futile. The Court will grant leave to amend for Mbewe’s First and Fourteenth

Amendment access-to-courts claim, as well as his First Amendment free-speech

“pattern and practice” claim involving legal mail.

If Mbewe chooses to file a third amended complaint in conformity with this

Memorandum, it should be a stand-alone document, complete in itself and without

reference to any previous pleadings. The third amended complaint should set forth

Mbewe’s First and Fourteenth Amendment claims (except those dismissed with

prejudice) in short, concise, and plain statements, and in sequentially numbered

paragraphs. Mbewe must also name proper defendants, specify the offending actions

taken by a particular defendant, sign the amended complaint, and indicate the nature

of the relief sought.

The Court specifically admonishes Mbewe that, if he files a third amended

complaint, he must include allegations of personal involvement by the named

Defendants.56 In many paragraphs of the second amended complaint, Mbewe uses the

term “defendants” or “defendant” without identifying who took the allegedly unlawful

action.57 Although there are times that Mbewe identifies Defendants by name, the

majority of his allegations lack specificity with regard to personal involvement. The

55 Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).

56 See Dooley, 957 F.3d at 374.

Court further admonishes Mbewe that, as he has already filed three versions of his

complaint, no further leave to amend will be granted absent exceptional

circumstances.

V. CONCLUSION

Based on the foregoing, the Court will grant Defendants’ motion (Doc. 39) to

dismiss under Federal Rule of Civil Procedure 12(b)(6). The Court will also grant

leave to amend as to some of Mbewe’s dismissed claims. An appropriate Order

follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge