# Mbewe v. DelBalso

> District Court, M.D. Pennsylvania · May 17, 2023

URL: https://www.frixlaw.com/law-library/cases/10413198

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** May 17, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10413198

## How later opinions describe it (automated extraction)

- concluding that, where inmate plaintiff “has already had two chances to tell his story,” providing “further leave to amend would be futile”
- finding legally insufficient prisoners’ undeveloped claims of losing “the opportunity to pursue attacks of their convictions” that failed to include, inter alia, “that they had no other remedy to compensate them for their lost claims”

## Opinion text

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

MAY 17, 2023
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. Mbewe, however, has failed to progress past the pleading stage.
Presently pending is Defendants’ motion to dismiss Mbewe’s third amended
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following
reasons, the Court will grant Defendants’ motion and will dismiss Mbewe’s third
amended complaint with prejudice.

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 over the preceding

two years. 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, Mbewe alleged 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 claimed that there is an ongoing pattern at SCI Mahanoy of prison officials

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.
interfering with legal mail or tacitly condoning such interference.12 Defendants
moved to dismiss Mbewe’s second amended complaint as well.13

On August 16, 2022, the Court granted Defendants’ Rule 12(b)(6) motion.14
The Court determined that, liberally construed, Mbewe’s second amended
complaint was attempting to assert 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.15 Mbewe’s
pleading, however, failed to plausibly state any of these constitutional torts.

The Court first dismissed—with prejudice—any potential claim of
deprivation of property without due process of law because adequate state post-
deprivation remedies existed.16 Next, the Court found that Mbewe’s access-to-

courts claim was deficient because he had failed to plead facts showing that the
alleged interference with his mail caused him to miss the one-year statute of
limitations for state post-conviction proceedings, and because he had failed to
plead facts showing that he had no other remedy for the purported loss.17 Finally,

the Court dismissed Mbewe’s First Amendment “pattern and practice” free-speech-

12 Id. ¶¶ 23-24.
13 See generally Doc. 39.
14 See generally Docs. 56, 57.
15 Doc. 56 at 5.
16 See id. at 5-6.
17 Id. at 8.
interference claim because he had failed to plead facts showing that the mail that
prison officials opened was privileged legal mail such that it being opened outside

of his presence implicated a constitutional violation.18 Mbewe was granted limited
leave to amend, giving him one final opportunity to cure the pleading
deficiencies.19
Mbewe filed his third amended complaint in September 2022.20 He then

amended that pleading by providing additional exhibits.21 His third amended
complaint names the same defendants: Superintendent Theresa A. Delbalso,
Captain Michael Dunkle, Lieutenant Kyle Wall, and Correctional Officers Adam

Crawford and Adam Chapman.22 Mbewe again 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,
cop[y]ing, and destroying” his legal mail.23 In Count II, Mbewe alleges that all
Defendants violated the First and Fourteenth Amendments by seizing, copying,
reading, and confiscating his legal mail.24

18 Id. at 9-12.
19 See id. at 13-14.
20 Doc. 62.
21 See Docs. 69, 69-1. Because the third amended complaint at CM/ECF document 62 is identical
to the third amended complaint at CM/ECF document 69 (save for the additional exhibits), the
Court will cite to document 69 as the operative third amended complaint.
22 See Doc. 69 ¶¶ 2-5.
23 See id. ¶¶ 35-46.
24 See id. ¶¶ 47-55.
Defendants once more move to dismiss Mbewe’s third amended complaint
for failure to state a claim upon which relief may be granted.25 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.”26 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.27 In

addition to the facts alleged on the face of the complaint, the court may also
consider “exhibits attached to the 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.28

When the sufficiency of a complaint is challenged, the court must conduct a
three-step inquiry.29 At step one, the court must “tak[e] note of the elements [the]
plaintiff must plead to state a claim.”30 Second, the court should distinguish well-

25 See generally Doc. 67.
26 Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see Nami v. Fauver, 82 F.3d 63, 66 (3d Cir.
1996).
27 Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008).
28 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)).
29 Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (internal citations and
quotation marks omitted) (footnote omitted).
30 Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (alterations in original)).
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.31 Finally, the court must review the presumed-truthful allegations
“and then determine whether they plausibly give rise to an entitlement to relief.”32
Deciding plausibility is a “context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”33

Because Mbewe proceeds pro se, his pleadings are to be liberally construed
and his third amended complaint, “however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers[.]”34 This is

particularly true when the pro se litigant, like Mbewe, is incarcerated.35
III. DISCUSSION
As Defendants correctly point out, Mbewe’s third amended complaint is

strikingly similar to his second amended complaint. As best as the Court can
ascertain, it appears that Mbewe is attempting to assert the same claims of First and
Fourteenth Amendment denial of access to the courts and First Amendment
“pattern and practice” free-speech-interference, both of which appeared in his

31 Id. (quoting Iqbal, 556 U.S. at 679).
32 Id. (quoting Iqbal, 556 U.S. at 679).
33 Iqbal, 556 U.S. at 681.
34 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted).
35 Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (citation omitted).
second amended complaint.36 After review, the Court finds that Mbewe has not
cured the numerous pleading deficiencies identified in its August 16, 2022

memorandum opinion.
A. Denial of Access to the Courts
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.”37 Under the First and Fourteenth Amendments to the United
States Constitution, “prisoners retain a right of access to the courts.”38 Inmates,

however, may only proceed on access-to-courts claims in two situations:
“challenges (direct or collateral) to their sentences and conditions of
confinement.”39 To adequately plead an access-to-courts claim that is backward-
looking in nature,40 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

36 To the extent that Mbewe is attempting to reassert a Fourteenth Amendment claim of
deprivation of property without due process, (see Doc. 83 at 8-9), that claim was dismissed
with prejudice and will not be discussed further.
37 Wisniewski v. Fisher, 857 F.3d 152, 156 (3d Cir. 2017) (quoting Newman v. Beard, 617 F.3d
775, 781 (3d Cir. 2010)).
38 Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008) (citing Lewis v. Casey, 518 U.S. 343, 346
(1996)).
39 Id. (citing Lewis, 518 U.S. at 354-55).
40 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).
recompense’ for the lost claim other than in the present denial of access suit.”41
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.”42
Mbewe avers that, in April 2019, his sister received a telephone call from
Rasheeda Johnson, a new eyewitness with respect to his state criminal case.43

According to Mbewe, Johnson had told his sister that she could provide
exculpatory testimony that Mbewe “was not the person that did the crime.”44
Mbewe alleges that Johnson provided a written statement that “defendants pre-
opened, copied and destroyed before [he] could receive a copy[] in time to file a

Post-Conviction Relief Act (‘PCRA’) petition” pursuant to 42 PA. CONS. STAT. §
9545(b)(1).45 Under subdivision (b)(1)(ii), a PCRA petition can be filed beyond
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.”46
Mbewe’s access-to-courts claim remains deficient in several respects. Like
his second amended complaint, Mbewe broadly claims that he missed the deadline

41 Monroe, 536 F.3d at 205 (quoting Christopher, 536 U.S. at 415).
42 See Christopher, 536 U.S. at 416-17.
43 See Doc. 69 ¶ 17.
44 Id.
45 Section 9545(b)(1) generally provides that a PCRA petition must be filed within one year of
the date the judgment becomes final, but then lists three exceptions to this general rule. See
42 PA. CONS. STAT. § 9545(b)(1)(i)-(iii).
46 42 PA. CONS. STAT. § 9545(b)(1)(ii).
to file a PCRA petition grounded in new evidence because “defendants” opened,
copied, and destroyed the alleged exculpatory correspondence from Johnson.47

However, 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 Johnson’s correspondence and that it
was “copied and destroyed,” who destroyed it, or how long “defendants” possessed
and “held” the correspondence without informing him.
Additionally, Mbewe has once again failed to plead facts showing that he

has no other remedy for the purported loss other than an access-to-courts claim.
He does not allege that he could not have filed a PCRA petition based on the
telephonic conversation between his sister and Johnson to preserve his statute of

limitations while he attempted to obtain a signed statement or an evidentiary
hearing.48 Mbewe had an entire year from the date he learned of Johnson’s new
eyewitness testimony to file such a petition.

47 The Court notes that Mbewe does not plausibly explain why prison officials would go through
the effort of opening and copying Mbewe’s correspondence, only to destroy both the original
and the copy rather than delivering a copy to Mbewe.
48 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
name, address, date of birth and substance of testimony”). Although Mbewe states that he did
not have Johnson’s address or phone number, he does not explain why he did not contact his
sister—the person whom Johnson contacted in the first instance—to obtain Johnson’s
information for the certification under § 9545(d)(1)(ii) or to obtain a copy of the purported
exculpatory statement itself.
Nor does Mbewe allege that he filed a PCRA petition based on this newly
discovered evidence and it was denied as untimely or unsupported. He also does

not allege that he sought federal habeas relief through 28 U.S.C. § 2254 by
requesting authorization to file a second or successive petition.49 Mbewe simply
claims that “there is no way [he] could put his Petition in on time because his legal
mail was held.”50 Such conclusory allegations fall far short of plausibly pleading

an access-to-courts claim.51
Finally, Mbewe admits that he is currently pursuing a Rule 60(b) motion in
federal court to reopen his federal habeas proceedings.52 Although this statement

is not part of Mbewe’s pleadings, it is yet another example of how Mbewe has
failed to plausibly plead that he has no other remedy except an access-to-courts
claim.

Consequently, the Court must again grant Defendants’ motion to dismiss.
Not only has Mbewe failed to cure the deficiencies specifically noted in this
Court’s August 16 opinion, but he has also failed to “identify the defendant or

49 See 28 U.S.C. § 2244(b)(2)(B)(i) (permitting a second or successive Section 2254 petition
where applicant shows that “the factual predicate for the claim could not have been discovered
previously through the exercise of due diligence”).
50 Doc. 69 ¶ 19.
51 See Monroe, 536 F.3d at 206 (finding legally insufficient prisoners’ undeveloped claims of
losing “the opportunity to pursue attacks of their convictions” that failed to include, inter alia,
“that they had no other remedy to compensate them for their lost claims”).
52 See Doc. 83 at 5; Mbewe v. Delbalso, No. 2:16-cv-1074-PLD, Doc. 67 (W.D. Pa. Sept. 19,
2022). The Court notes, however, that Mbewe does not appear to mention the new evidence
from Johnson in his Rule 60(b) motion or supporting brief. See generally id., Docs. 67, 68.
defendants involved” or to “specify the offending action taken by each purportedly
liable defendant.”53 As Mbewe has repeatedly failed to state an access-to-courts

claim despite previous amendments allowed, dismissal will be with prejudice.54
B. Interference with Legal Mail
Mbewe’s primary contention (in both his second and third amended

complaints) 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. His third amended complaint, much like his
second, fails to 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 mail.55 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.”56 There
does not need to be an independent injury to assert such a First Amendment claim,

53 See Doc. 56 at 9.
54 See Foman v. Davis, 371 U.S. 178, 182 (1962).
55 Jones v. Brown, 461 F.3d 353, 358-59 (3d Cir. 2006).
56 Id. at 359.
as “protection of an inmate’s freedom to engage in protected communications is a
constitutional end in itself.”57

As this Court thoroughly explained in its August 16 opinion, 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.58 Importantly, under DC-ADM 803, privileged
legal mail must have an attorney or court “control number” on the envelope

indicating it is privileged legal correspondence that is required to be opened in the
presence of the inmate.59 The presence of a control number is how prison officials
determine which correspondence cannot be read and must be opened in the

inmate’s presence.
Mbewe alleges that Defendants have opened and read mail outside of his
presence from “Su Ming Yeh Esq,” “Elizabeth Delosa Esq,” and “Nicole R.
Ditomo Esq.”60 However, he does not plausibly allege that he is represented by

any of these attorneys or, more importantly, that their correspondence contained

57 Id. at 360.
58 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”].
59 See DC-ADM 803 § 1(D)(1); Fontroy v. Beard, 559 F.3d 173, 174 (3d Cir. 2009).
60 Doc. 69 ¶¶ 8, 45-46, 50. Mbewe asserts that Attorney Delosa is from the “Innocence Project.”
Id. ¶¶ 8, 13.
attorney control numbers that were ignored by prison officials. Attorney DiTomo,
for example, is opposing counsel in the instant case. She does not represent

Mbewe and her correspondence to him is not “privileged inmate correspondence”
such that it must contain a control number or be opened in his presence.61
Mbewe repeatedly confuses communication that may be subject to attorney-

client privilege and “privileged inmate correspondence” as defined by DC-ADM
803.62 Simply because mail is from an attorney or a legal nonprofit (and may
include confidential information protected by attorney-client privilege) does not
require prison officials to consider it privileged inmate correspondence and open it

only in the inmate’s presence. Rather, the DOC has explicitly instituted a policy
utilizing control numbers to delineate between privileged legal mail (that must be
opened in the presence of inmates) and nonprivileged mail (that can be otherwise
opened and inspected outside of an inmate’s presence).63 To the extent that

Mbewe is challenging the constitutionality of this policy,64 the Third Circuit has
already rejected such a challenge.65
At bottom, the reason why Mbewe fails to state a free-speech interference

claim is because he has not plausibly alleged that prison officials were knowingly

61 See generally DC-ADM 803 § 1(D).
62 See, e.g., Doc. 69 ¶¶ 23, 28, 32, 36, 37, 45, 46, 50.
63 Fontroy, 559 F.3d at 175-76.
64 See Doc. 69 ¶ 42 (alleging that the DOC’s “New Legal Mail Policy infringes on Plaintiff’s
First and Fourteenth Amendment rights to free speech and due process[.]”).
65 See Fontroy, 559 F.3d at 174, 182.
opening privileged inmate correspondence (as defined by DC-ADM 803)
containing attorney or court control numbers.66 Although Mbewe argues in his

surreply that “Defendants”—once again failing to specify which defendant or
defendants—should have refused or rejected the attorney correspondence lacking a
control number pursuant to DC-ADM 803,67 failure to do so does not implicate a
violation of Mbewe’s First Amendment free-speech rights.68 Rather, due to

institutional security concerns, mail that appears to be from an attorney or court but
lacks the requisite control number can be “opened and inspected like regular
mail.”69

Without allegations that plausibly identify a First Amendment free-speech
violation by SCI Mahanoy officials, Mbewe cannot state a Section 1983 claim
against them. Mbewe, moreover, has once again failed to specify the defendants

66 Mbewe makes such a claim in his surreply. See Doc. 83 at 3-4. But as Mbewe has been
repeatedly admonished, (see Doc. 56 at 9 n.41, 11 n.48), 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)).
67 See Doc. 83 at 3, 4, 7; DC-ADM 803 § 1(B)(1)(c) (noting that correspondence will be “refused”
if it is “privileged mail that does not contain a valid” control number and/or Time Code (TC)
as applicable”); id. § 1(D)(3)(f) (noting that attorneys’ or courts’ failure to comply with the
control number requirements “may result in the rejection of the correspondence” (emphasis
supplied)).
68 The Court notes that, in the exhibits to his third amended complaint, Mbewe included DOC
correspondence history that indicates that mail from Attorney Nilam Sanghvi from the
Pennsylvania Innocence Project at Temple University was rejected and that the rejection was
“upheld.” See Doc. 69-1 at 13.
69 Fontroy, 559 F.3d at 176; Pelino v. Wetzel, No. 21-1363, 2022 WL 1239050, at *2 n.5 (3d Cir.
2022) (nonprecedential) (noting that legal mail that is not hand-delivered or marked with a
control number “would be treated as regular mail and opened at off-site facilities to be
inspected for contraband” (citing Fontroy, 559 F.3d at 174)).
who allegedly took the unconstitutional action despite being explicitly instructed to
do so. Thus, Mbewe’s free-speech interference claim must be dismissed again.

Dismissal will be with prejudice, as Mbewe has failed to cure his pleading
deficiencies despite multiple previous amendments allowed.
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
would be inequitable or futile.”70 Further leave to amend will be denied as futile.
Mbewe has been given multiple opportunities to revise his pleadings, yet he has

failed to cure the fundamental deficiencies therein even after “amendments
previously allowed.”71
V. CONCLUSION

Based on the foregoing, the Court will grant Defendants’ motion (Doc. 67)
to dismiss under Federal Rule of Civil Procedure 12(b)(6). The Court will dismiss
Mbewe’s third amended complaint with prejudice. An appropriate Order follows.
BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge

70 Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
71 See Foman v. Davis, 371 U.S. 178, 182 (1962); Jones v. Unknown D.O.C. Bus Driver &
Transp. Crew, 944 F.3d 478, 483 (3d Cir. 2019) (concluding that, where inmate plaintiff “has
already had two chances to tell his story,” providing “further leave to amend would be futile”).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10413198. Public record. Not legal advice.