Wyatt v. Municipality of Commonwealth of Harrisburg

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

TARIQ WYATT, :

Plaintiff : CIVIL ACTION NO. 1:23-509

V. : (JUDGE MANNION)

JUDGE JENNIFER P. WILSON, : FILED

et al., SCRANTON

Defendants FEB 18 2025

‘PER GKL

MEMORANDUM DEPUTY CLERK

Presently before the Court is pro se Plaintiff Tariq Wyatt’s amended

complaint in which he asserts causes of action under 42 U.S.C. §1983 for

constitutional violations against Defendants: two (2) Judges of this Court, the

current and former Governors of the Commonwealth of Pennsylvania, two

municipalities, and counsel for the Pennsylvania Office of the Attorney

General and the Commonwealth of Pennsylvania Department of Corrections

who represented defendants in two prior civil actions Plaintiff filed in this

Court. As Plaintiff is proceeding in forma pauperis, the Court has screened

the amended complaint pursuant to 28 U.S.C. §1915(e)(2)(B). For the

reasons set forth below, the Court will dismiss the amended complaint

without granting Plaintiff leave to file a second amended complaint.

BACKGROUND

Plaintiff, a convicted and sentenced state prisoner, commenced this

action by filing a complaint, which the Clerk of Court docketed on March 23,

2023. (Doc. 1.) Plaintiff named as Defendants the “Municipality of

Commonwealth of Harrisburg” and the “Municipality of Commonwealth of

Mechanicsburg.” (/d. at 1.) Plaintiff's causes of action, which he asserted

under 42 U.S.C. §1983, related to his belief that counsel from the

Pennsylvania Attorney General’s Office and the Governor's Office of General

Counsel violated his rights under the First Amendment to the United States

Constitution when they sent legal materials relating to two (2) of his cases,

Wyatt v. Hauser, et al., No. 1:22-cv-92 (M.D. Pa.) (‘Wyatt P’) and Wyatt v.

Mason, et al., No. 1:22-414 (M.D. Pa.) (“Wyatt IP) (collectively, “Wyatt | &

IP’), to the mailing address for personal, nonprivileged mail, rather than the

address for “legal mail.” (/d. at 2-7.) For relief, Plaintiff sought, inter alia,

injunctive, declaratory, and monetary relief. (/d. at 7.)

Plaintiff neither remitted the filing fee nor filed an application for leave

to proceed in forma pauperis with his complaint. As such, an Administrative

Order issued on March 23, 2023, requiring him to either remit the fee or file

an application for leave to proceed in forma pauperis within thirty (30) days

or risk dismissal of this action. (Doc. 3.) Plaintiff timely complied with this

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Administrative Order by filing a certified application for leave to proceed in

forma pauperis along with a certified prisoner trust fund account statement

on April 13, 2023. (Docs. 4, 5.) On the same date, Judge Martin C. Carlson

entered an Order which, inter alia, granted Plaintiff's application for leave to

proceed in forma pauperis. (Doc. 6.)

After screening the complaint pursuant to 28 U.S.C. §1915(e)(2)(B),

Judge Carlson entered a Report and Recommendation on April 14, 2023 (the

“R&R”), recommending that the complaint be dismissed without prejudice to

Plaintiff filing an amended complaint. (Doc. 7.) In recommending dismissal,

Judge Carlson determined that the complaint violated Federal Rule of Civil

Procedure 8 because it did not adequately inform Defendants of the causes

of action asserted against them. (/d. at 9-10.) He pointed out that Plaintiff

appeared to be suing the places where the state officials who allegedly

aggrieved him worked, rather than suing the officials themselves. (/d. at 10.)

This ran afoul of Section 1983, which only imposes liability on “person[s]”

who commit constitutional violations while acting under color of state law. (/d.

(citing 42 U.S.C. §1983)).

Plaintiff timely filed objections to the R&R, along with a supporting

memorandum of law, on April 28, 2023. (Docs. 9, 10.) On August 24, 2023,

Judge Jennifer P. Wilson entered an Order (1) overruling Plaintiff's

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objections, (2) adopting the R&R in its entirety, and (3) dismissing the

complaint without prejudice to Plaintiff filing an amended complaint within

forty-five (45) days. (Doc. 12.)

Plaintiff timely filed an amended complaint, which the Clerk of Court

docketed on September 19, 2023. (Doc. 14.) In the amended complaint,

Plaintiff names as Defendants: Judge Wilson; Judge Carlson; Kimberly

Adams, Esq. (“Adams”), Assistant Counsel for the Pennsylvania Department

of Corrections; Jonathan M. Blake, Esq. (“Blake”), Deputy Pennsylvania

Attorney General; former Pennsylvania Governor Tom Wolf;' current

Pennsylvania Governor Josh Shapiro; and Pennsylvania Attorney General

Michelle A. Henry (“Henry”), in their official and individual capacities, as well

as the “Municipality of City of Harrisburg” and the “Municipality of City of

Mechanicsburg.” (/d. at 1, 4-7.)

Rather than start off his amended complaint with factual allegations,

Plaintiff uses the first three (3) pages of the amended complaint to repeat his

objections to the R&R and assert objections to Judge Wilson’s August 24,

2023 Order. (/d. at 1-3.) Only after these objections does Plaintiff start to

describe the alleged “conspiratorial deceit, twisting and bending [of] the law,

1 Plaintiff incorrectly spells Governor Wolf's last name as “Wolfe” in the

amended complaint. (Doc. 14 at 1, 6.) The correct spelling is used here.

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breaking [of] the law, . . . flux of constitutional violations, . . . [and] massive

web of lies and false precedents” forming the basis of his claims against

Defendants. (/d. 713.)

Plaintiff alleges that Blake and Adams violated his First Amendment

right of access to the courts by sending legal correspondence pertaining to

Wyatt | & Il to the Department of Corrections (“DOC”)’s mail processing

center, Smart Communications, which is off-site from any of its state prisons.

(id. 99117, 23, 24, 32, 48.) Mail intended for Plaintiff and received at Smart

Communications is opened and copied outside his presence. (Id. 917.) In

addition, there are delays in Plaintiff's receipt of legal mail sent to Smart

Communications, “which could potentially cause many more issues for [his]

future opposing responses” in Wyatt | & Il. (/d.)

Along with these alleged constitutional violations by Blake and Adams

relating to Wyatt’s legal mail in Wyatt / & I/, Plaintiff indicates that

the actions which give rise to [his] claim[s] are comprised of three

(3) very basic, and very [intentional lies], which is actually, in

essence, two (2) lies, where one lie is being told twice, and to

two (2) different people, the effect of which, is to cause new lies

to be told and [false precedents] to be set, to confuse the

masses, and to violate constitutional rights on a massive scale.

(Id. ]28 (third and fourth use of brackets in original)). Because these “lies”

and the mailing issues are affecting all Pennsylvania state inmates, Plaintiff

requests that the Court give this case “class action status.” (/d.)

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Turning now to the alleged “lies,” Plaintiff alleges that Adams and Blake

told the first lie to Judges Wilson and Carlson when they informed the Judges

that Plaintiff had invoked attorney-client privilege pertaining to them. (/d.

q30.)* Plaintiff had never mentioned attorney-client privilege; instead, he had

indicated that the “law” treated correspondence from opposing counsel in a

case as privileged legal correspondence. (/d.) As a result of this “lie,”

“Judges” would “turn a deaf ear” to his arguments pertaining to the ongoing

constitutional violations occurring with his incoming legal correspondence.

The second “lie,” according to Plaintiff, is one that was told twice, as

such, it also constitutes the third lie. (/d. 931.) While this second/third lie is

“equally damaging by itself,” when it is “commingled together with the first

lie, it has the propensity to lend false ground [sic] for false precedents.” (/d.)

The second/third lie Adams and Blake told to both Plaintiff and the Judges

was that they were following DOC policies when sending Plaintiff legal mail,

with said policies requiring them to send their mail to the off-site mail

processing center. (/d. 32.) Plaintiff avers that the procedure actually

requires counsel to send legal correspondence to the prison by using a

2 Plaintiff believes that similar conduct occurred in other prisoner pro

se cases. (/d. J30.)

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control number. (/d.) By Adams and Blake stating that the procedure is

different than this, Plaintiff believes that it

completely closes the mind of the Judge to all arguments from

Plaintiff pertaining to this argument, because, as the Judge

believes he has a [pro se] plaintiff, whose [sic] not sure who is

representing him, [and] he is challenging a policy that has

already been declared to be constitutional], [and] when the third

lie, which was the same lie, was told to the inmate, and the

inmate indeed challenges the policy, all bets are off, and now the

Judge is almost taking instruction from the “lawyers” [sic]

Defendants.

(/d. (all bracket use, other than [sic], in original)).

Plaintiff complains that these “lies” have convinced Judges Wilson and

Carlson to “turn a blind eye and a deaf ear towards” his arguments in Wyatt

1 & Il. (Id. 733.) Plaintiff has raised the issue about Blake and Adams's mailing

improprieties in Wyatt | & I! by complaining to Judges Carlson and Wilson,

but they have ignored his complaints. (/d. 115-17, 22.) In addition, Plaintiff

indicates that even after he provided Judge Wilson with the law, told her that

he was not invoking attorney-client privilege, and explained that Adams and

Blake were lying about following DOC policy, she ordered the continued

violation of his constitutional rights. (/d. 720, 22, 33.) Judge Wilson (and

possibly Judge Carlson) have denied Plaintiff relief, asserted that he did

invoke attorney-client privilege, determined that Blake and Adams were

following DOC policy, and set and enforced a “false precedent.” (/d. □□□□□□

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This “false precedent” consisted of decisions, which do not cite to any

“statute, law, rule, regulation, or policy,” stating that Plaintiff had no right to

attorney-client privilege with opposing counsel and correspondence from

opposing counsel is not considered to be privileged correspondence. (/d.

134.) Plaintiff avers that other Judges are relying on these decisions when

addressing claims by other state prisoners, which concerns Plaintiff because

he believes that the “false precedent” “can only stand to become stronger.”

(Id.)

Plaintiff also alleges that Judge Carlson has “show[ed]. . . bias towards

prisoner lawsuits” through his decisions in Wyatt /, particularly when he

dismissed Plaintiff's motion for a default judgment. (/d. 714.) According to

Plaintiff, Defendants in Wyatt / had not timely filed responses to the complaint

after waiving service and, as such, Plaintiff believes that Judge Carlson

should not have dismissed his motion. (/d. 15.) In addition, Plaintiff asserts

that Judge Carlson ignored his requests to intervene in the case despite

Blake “procrastinating every chance he gets[] . .. and refusing to comply with

discovery demands.” (/d.) Judge Carlson also purportedly ignored Plaintiff's

request to address Blake’s mailing improprieties when Plaintiff submitted a

motion for an extension of time after he belatedly received mail from Blake.

(Id. 717.) Plaintiff claims that instead of directing Blake to send mail directly

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to the state prison, all Judge Carlson did was grant Plaintiff's motion and give

him additional time to act. (/d.)

Plaintiff also complains about events in Wyatt II. Apparently, Judge

Carlson issued a Report and Recommendation, which recommended that

Plaintiff's official- and individual-capacity claims against Defendants in that

case be dismissed. (/d. ]18.) Plaintiff asserts that Judge Carlson issued this

Report and Recommendation despite Plaintiff filing the instant case and

complaining about Judge Carlson’s actions in his original complaint. (/d.

119.)

The Clerk’s Office apparently had to resend the Report and

Recommendation to Plaintiff because the original envelope containing the

document was returned as undeliverable. (/d.) Shortly after Plaintiff received

the resent Report and Recommendation, he also received an Order from

Judge Wilson which had adopted the Report and Recommendation. (/d.) In

response to Judge Wilson’s Order, Plaintiff filed a letter and motion for

reconsideration, which Judge Wilson denied. (/d.) This denial meant that

Plaintiff could not object to the Report and Recommendation, which he

believes incorrectly recommended dismissal of his claims. (/d.)

As for Defendants Governor Wolf, Governor Shapiro, and Henry,

Plaintiff asserts that they were either “at the first commencement of these

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constitutional violations, or are now, the holders of office which either [Blake

or Adams] worked under.” (/d. 425.) Plaintiff believes that the actions of

Blake, Adams, Judge Wilson, and Judge Carlson were done “at the behest”

of Governor Wolf, Governor Shapiro, and Henry. (/d.) If Governor Wolf,

Governor Shapiro, and Henry submit an affidavit indicating that (1) the

actions described in the amended complaint were done without their

knowledge and approval and (2) they disapprove of the mailing methods

used by Blake and Adams, Plaintiff agrees to dismiss them from this action.

(Id. JJ] 8-10.) However, if Plaintiff discovers that “the truth [is] . . . other than

stated in [these] affidavit[s],” he will “immediately reinstate[]” them as

Defendants. (/d.)

The final named Defendants are the Cities of Harrisburg and

Mechanicsburg. (/d. at 1, 7.) Plaintiff avers that these Defendants are “the

municipalities responsible for’ the other Defendants. (/d. J 11.) They are also

“liable for [their] constituents such as judicial entities.” (/d. J 26.)

For relief, Plaintiff seeks a declaration stating that Defendants’ actions

violated his constitutional rights, a preliminary and permanent injunction

requiring Judges Wilson and Carlson to be removed from any case involving

him, including Wyatt / & //, a preliminary and permanent injunction prohibiting

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the sending of correspondence relating to “open civil or other cases” to Smart

Communications, and monetary damages. (/d. at 26-27.)

On September 20, 2023, this matter was reassigned from Judges

Wilson and Carlson to the undersigned. (Unnumbered Docket Entry

Between Docs. 14 and 15.) Plaintiff filed a motion for appointment of counsel

on December 29, 2023 (Doc. 17), which the Court denied via an Order

entered on February 16, 2024. (Doc. 19.)

ll. STANDARD OF REVIEW

Because the Court previously granted Plaintiff leave to proceed in

forma pauperis, the Court must examine whether the amended complaint is

frivolous, malicious, fails to state a claim upon which relief can be granted,

or asserts a claim against a defendant immune from monetary relief. See 28

U.S.C. §1915(e)(2)(B)(i)-(iii) (providing that “[nJotwithstanding any filing fee,

or any portion thereof, that may have been paid, the court shall dismiss the

case at any time if the court determines that-- . . . (B) the action or appeal—

(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be

granted; or (iii) seeks monetary relief against a defendant who is immune

from such relief’). A complaint is frivolous under section 1915(e)(2)(B)(i) if it

“lacks an arguable basis either in law or fact,” Neitzke v. Williams, 490 U.S.

319, 325 (1989), and is legally baseless if it is “based on an indisputably

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meritless legal theory.” Deutsch v. United States, 67 F.3d 1080, 1085 (3d

Cir. 1995). A complaint is malicious if, after “engag[ing] in a subjective inquiry

into the litigant’s motivations at the time of the filing of the lawsuit,” the Court

determines that “the actions is an attempt to vex, injure or harass the

defendant.” /d. at 1086. “[A] district court may dismiss a complaint as

malicious if it is plainly abusive of the judicial process or merely repeats

pending or previously litigated claims.” Brodzki v. CBS Sports, No. 11-cv-

841, 2012 WL 125281, at *1 (D. Del. Jan. 13, 2012).

As for the Court’s analysis under Section 1915(e)(2)(B)(ii), the

standard for dismissing a complaint for failure to state a claim pursuant to

this subsection is identical to the legal standard used when ruling on motions

to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Tourscher v.

McCullough, 184 F.3d 236, 240 (3d Cir. 1999) (applying Rule 12(b)(6)

standard to dismissal for failure to state claim under section 1915(e)(2)(B)).

Therefore, to survive dismissal, “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, 556 U.S. 662, 678 (2009) (quoting Bell Ail. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). The plaintiff's factual allegations “must

be enough to raise a right to relief above the speculative level.” Twombly,

550 U.S. at 556 (citation omitted).

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In addressing whether a pro se plaintiff's operative complaint fails to

state a claim, the court must liberally construe the allegations set forth in the

operative complaint. See Shorter v. United States, 12 F.4th 366, 374 (3d Cir.

2021) (“At this early stage of the litigation, we accept the facts alleged [in the

pro se] complaint as true, draw all reasonable inferences in [the pro se

plaintiff's] favor, and ask only whether that complaint, liberally construed, . .

. contains facts sufficient to state a plausible . . . claim.” (citation, internal

quotation marks, and all original alterations omitted)); see also Vogt v.

Weizel, 8 F.4th 182, 185 (3d Cir. 2021) (“We construe Vogt’s pro se filings

liberally. This means we remain flexible, especially ‘when dealing with

imprisoned pro se litigants’ like Vogt.” (internal citations omitted) (quoting

Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-45 (3d Cir. 2013))).

Nevertheless, conclusory allegations will not suffice. See /qbal/, 556 U.S. at

678 (“A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation

of the elements of a cause of action will not do.” (quoting Twombly, 550 U.S.

at 555)). Neither will “a formulaic recitation of the elements of a cause of

action.” Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261

(3d Cir. 1994). Moreover, when construing a pro se plaintiffs operative

complaint, the Court will “apply the relevant legal principle even when the

complaint has failed to name it.” Vogt, 8 F.4th at 185 (quoting Mala, 704

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F.3d at 244). However, pro se litigants “cannot flout procedural rules—they

must abide by the same rules that apply to all other litigants.” /d. (quoting

Mala, 704 F.3d at 245).

lil. DISCUSSION

A. Plaintiff's Objections

As indicated above, Plaintiff's amended complaint starts with three (3)

pages of objections, some pertaining to this case and others pertaining to

actions by Judges Wilson and Carlson in Wyatt | & Il. (Doc. 14 at 1-3.)

Including these objections with his amended complaint is wholly improper. A

complaint, including an amended complaint, is a document that must comply

with several Federal Rules of Civil Procedure. See, e.g., Fed. R. Civ. P. 8—

11. Nowhere in those Rules does it state that a plaintiff may combine

objections (or any other pleading, motion, or submission) with an amended

complaint, much less objections to conduct in entirely separate actions, /.e.

Wyatt | & Il. While Plaintiff properly filed objections to Judge Carlson’s R&R

in this case, see 28 U.S.C. §636(b)(1) (allowing any party to file written

objections to a report and recommendation), Judge Wilson already resolved

those objections. To the extent that Plaintiff is dissatisfied with the resolution

of those objections, he may file an appeal to the Third Circuit Court of

Appeals at an appropriate time. Overall, because Plaintiff improperly

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included objections with his amended complaint, the Court will strike those

objections from the amended complaint.

B. Plaintiff's Request for “Class Action Status”

On numerous occasions in the amended complaint, Plaintiff refers to

other inmates, other inmate plaintiffs, and a desire to proceed with a class

action on behalf of other DOC inmate plaintiffs. (Doc. 14 ]§J27-30, 33-34,

40, 43). As a pro se litigant, Plaintiff may not proceed in this case on behalf

of others or a putative class. See Murray v. City of Philadelphia, 901 F.3d

169, 170 (3d Cir. 2018) (“Although an individual may represent himself or

herself pro se, a non-attorney may not represent other parties in federal

court.”). Instead, Plaintiff may only plead and conduct his own case

personally or by counsel in this Court. See 28 U.S.C. §1654 (“In all courts of

the United States the parties may plead and conduct their own cases

personally or by counsel as, by the rules of such courts, respectively, are

permitted to manage and conduct causes therein.”); Murray, 901 F.3d at 170

(“Section 1654 .. . ensures that a person may conduct his or her own case

pro se or retain counsel to do so.”); Osei-Afriyie v. Med. Coll. of Pa., 937 F.2d

876, 882 (3d Cir. 1991) (“The statutory right to proceed pro se reflects a

respect for the choice of an individual citizen to plead his or her own cause.”

(quoting Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61

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(2d Cir. 1990))). This principle also precludes non-attorney litigants from

representing others through a class action. See Hagan v. Rogers, 570 F.3d

146, 158-59 (3d Cir. 2009) (explaining that “pro se litigants are generally not

appropriate as class representatives”); Lewis v. City of Trenton Police Deptt,

175 F. App’x 552, 554 (3d Cir. 2006) (unpublished) (“Lewis, who is

proceeding pro se, may not represent a putative class of prisoners.” (citing

Fymbo v. State Farm Fire & Cas. Co., 213 F.3d 1320, 1321 (10th Cir. 2000)

and Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975))). Therefore,

Plaintiff's attempt to raise claims on behalf of other inmates and request for

class action status are improper, and the Court will dismiss any claims

brought on behalf of other inmates and strike Plaintiff's request for class

action status.

C. Plaintiff's Claims Against Judges Wilson and Carlson

1. Plaintiff's Bivens Claims

Although Plaintiff indicates that he is proceeding under Section 1983

for a First Amendment violation in the amended complaint, the Court

construes the amended complaint as containing claims under Bivens v. Six

Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388

(1971) against Judges Wilson and Carlson, two (2) federal judges, for

allegedly violating Plaintiff's First and Fifth Amendment rights of access to

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the courts. See /qbal/, 556 U.S. at 675-76 (“In the limited settings where

Bivens does apply,” it acts as “the ‘federal analog to suits brought against

state officials under [Section 1983].” (quoting Hartman v. Moore, 547 U.S.

250, 254 n.2 (2006))); Lomax v. U.S. Senate Armed Forces Serv. Comm.,

454 F. App’x 93, 95 n.1 (3d Cir. 2011) (unpublished) (“Bivens allows a

plaintiff to bring a claim against federal officers acting under color of law for

violations of that individual’s constitutional rights.” (citing Bivens, 403 U.S. at

397)); see also Jarvis v. D’Andrea, 599 F. App’x 35, 36 (3d Cir. 2015)

(unpublished) (agreeing with district court’s construction of plaintiff's

complaint as asserting civil rights action under Bivens, rather than Section

1983, because defendant was a federal official and not a state official). As

explained below, the Court will dismiss with prejudice Plaintiff's Bivens

claims against Judges Wilson and Carlson.

In the first instance, Bivens does not extend to Plaintiff's access-to-the-

court claims here. In Bivens, the United States Supreme Court concluded

that a plaintiff could proceed on a claim for damages against federal officers

for violating the Fourth Amendment. 403 U.S. at 397. Since then, the Court

has “declined 11 times to imply a similar cause of action for other alleged

constitutional violations,” Egbert v. Boule, 596 U.S. 482, 486 (2022), and has

only fashioned [two] new causes of action under the

Constitution—first, for a former congressional staffer’s Fifth

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Amendment sex-discrimination claim, see Davis v. Passman,

442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979); and second,

for a federal prisoner's inadequate-care claim under the Eighth

Amendment, see Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468,

64 L.Ed.2d 15 (1980).

Id. at 490-91.

Recently, the Supreme Court “emphasized that recognizing a cause of

action under Bivens is a ‘disfavored judicial activity.” /d. at 491 (quoting

Ziglar v. Abassi, 582 U.S. 120, 135 (2017)). It has “framed the inquiry [of a

proposed Bivens claim as proceeding in two steps.” /d. at 492. First, the court

asks “whether the case presents ‘a new Bivens context’—/.e., is it

‘meaningfully’ different from the three cases in which the Court has implied

a damages action.” /d. (quoting Ziglar, 582 U.S. at 139). “Second, if a claim

arises in a new context, a Bivens remedy is unavailable if there are ‘special

factors’ indicating that the Judiciary is at least arguably less equipped than

Congress to ‘weigh the costs and benefits of allowing a damages action to

proceed.” /d. (quoting Ziglar, 582 U.S. at 136). “If there is even a single

‘reason to pause before applying Bivens in a new context,’ a court may not

recognize a Bivens remedy.” /d. (quoting Hernandez v. Mesa, 589 U.S. 93,

102 (2020)).

Here, and as the Third Circuit has explained, “[t]he Supreme Court has

never recognized a Bivens remedy under the First Amendment.” Bistrian v.

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Levi, 912 F.3d 79, 95-96 (3d Cir. 2018) (citing Reichle v. Howards, 566 U.S.

658, 663 n.4 (2012)). This includes any First Amendment access-to-the-

courts claim like Plaintiff asserts in this case. See id. (explaining that

Supreme Court’s decision in Ziglar abrogated the Third Circuit's prior

decisions recognizing an implied right to sue federal officials for damages for

First Amendment violations, which included Milhouse v. Carlson, 652 F.2d

371, 373—74 (3d Cir. 1981), which had “impl[ied] a Bivens remedy under the

First Amendment for the denial of a prisoner's right of access to courts”):

Goldberg v. Ortiz, No. 22-1954, 2023 WL 8064810, at *1 (3d Cir. Nov. 21,

2023) (explaining that because the Supreme Court has never recognized a

Bivens remedy for a First Amendment violation, plaintiff's “access-to-the-

courts claim is ‘novel’” (quoting Bistrian, 912 F.3d at 95—96)). It also includes

any potential Fifth Amendment access-to-the-courts claim Plaintiff is

potentially asserting in this case. See, e.g., Jordan v. Barves, No. 4:24-cv-

356, 2024 WL 1585939, at *3 (M.D. Pa. Apr. 11, 2024) (explaining that “even

if [plaintiff] could plausibly state a First and Fifth Amendment access-to-

courts claim, such a claim would present a new Bivens contexi[, and] multiple

courts within and outside this circuit, including this Court, have held that an

extension of Bivens to this new context is unwarranted” (footnotes omitted)),

aff'd, No. 24-2030, 2024 WL 4579248 (3d Cir. Oct. 25, 2024). Thus, because

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Plaintiff's claim “arises in a new context,” this Court cannot recognize a

Bivens remedy if there are any “special factors counselling hesitation.” Ziglar,

582 U.S. at 136 (citations and internal quotation marks omitted).

The Court finds that there are special factors indicating that Congress

is better equipped to weigh the costs and benefits of allowing a damages

action in a context like this one. To put it plainly, considering that “[t]he

immunity of judges for acts within the judicial role is . . . well established” in

the common law, Pierson v. Ray, 386 U.S. 547, 554 (1967), Congress is

better equipped to weigh the costs and benefits of allowing a damages action

against federal judges. Cf. id. (rejecting contention that by passing Section

1983, Congress intended to abolish judicial immunity). In addition, Plaintiff

could file grievances with the DOC if he believes that the DOC’s policy is

unconstitutional. See Ziglar, 582 U.S. at 148 (“[T]he existence of alternative

remedies usually precludes a court from authorizing a Bivens action.”)

Accordingly, the Court concludes that Plaintiff's access-to-the-courts claims

present a new Bivens context and that special factors weigh against

recognizing a Bivens remedy for them.

2. Plaintiff's Official-Capacity Bivens Claims

Additionally, even if there was a recognized Bivens remedy for

Plaintiff's access-to-the-court claims, he may not proceed against Judges | □

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Wilson and Carlson on these claims. Plaintiff's attempt to sue Judges Wilson

and Carlson in their official capacities is improper because a Bivens claim

may only be brought against federal defendants in their individual capacities.

See Debrew v. Auman, 354 F. App’x 639, 641 (3d Cir. 2009) (unpublished)

(“[NJo [Bivens] claims could properly be brought against defendants in their

official capacities.”); Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir.

1987) (“[A] Bivens action can be maintained against a defendant in his or her

individual capacity only, and not in his or her official capacity.”). Moreover,

Plaintiff's official-capacity Bivens claims against Judges Wilson and Carlson,

are essentially claims against the United States, which are barred by the

United States’ sovereign immunity. See Lewal v. Ali, 289 F. App’x 515, 516

(3d Cir. 2008) (unpublished) (“An action against government officials in their

official capacities constitutes an action against the United States, and Bivens

claims against the United States are barred by sovereign immunity, absent

an explicit waiver.” (citations omitted)); Martinez v. United States, 838 F.

App’x 662, 664 (3d Cir. 2020) (unpublished) (concluding that plaintiff's

Bivens claims against four (4) federal judges in their official capacities were

barred by sovereign immunity); Talley v. Wetzel, No. 22-cv-1712, 2023 WL

5163289 (M.D. Pa. July 17, 2023) (“To the extent that Talley is seeking

damages against the United States and Judge Savage in his official capacity

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for constitutional violations, it is well settled that sovereign immunity bars

Bivens actions against the United States and, by extension, against federal

officials sued in their official capacities.” (footnote omitted)), report and

recommendation adopted, 2023 WL 11984013 (M.D. Pa. Aug. 24, 2023).

3. _ Plaintiff’s Individual-Capacity Bivens Claims

Judges Wilson and Carlson are entitled to absolute judicial immunity

from Plaintiff's individual-capacity Bivens claims. Judges are entitled to

absolute immunity from civil rights claims that are based on acts or omissions

taken in their judicial capacity, so long as they do not act in the complete

absence of all jurisdiction. See Stump v. Sparkman, 435 U.S. 349, 355-56

(1978). An act is taken in a judge's judicial capacity if it is “a function normally

performed by a judge.” Gallas v. Supreme Ct. of Pa., 211 F.3d 760, 768 (3d

Cir. 2000). Moreover, “[g]enerally . . . ‘where a court has some subject matter

jurisdiction, there is sufficient jurisdiction for immunity purposes.” Figueroa

v. Blackburn, 208 F.3d 435, 443-44 (3d Cir. 2000) (quoting Barnes v.

Winchell, 105 F.3d 1111, 1122 (6th Cir. 1997)). Because judges must feel

free to act without fear of incurring personal liability for their actions in court,

judicial immunity remains in force even if the actions are alleged to be legally

incorrect, in bad faith, malicious, or corrupt, see Mireles v. Waco, 502 U.S.

9, 11-12 (1991), or are taken due to a conspiracy with others. See Dennis v.

-22 -

Sparks, 449 U.S. 24, 27 (1980). Additionally, a judge’s “[i]Jmmunity will not be

forfeited because [the] judge has committed grave procedural errors, ...

because [the] judge has conducted a proceeding in an informal and ex parte

manner|, or]. . . because the judge’s action is unfair or controversial.” Gallas,

211 F.3d at 769 (citations omitted).

Here, Plaintiff complains about the decisions of Judges Wilson and

Carlson in Wyatt | & He disagrees with, inter alia, Judge Carlson’s denial

of his motion for a default judgment in Wyatt | (Doc. 14 9914, 15);? his lack

3 Although ultimately impertinent to the Court’s discussion of the

Judges’ absolute immunity, the Court notes that Plaintiff could not have

obtained a default judgment simply because Defendants did not file a

response to the complaint within sixty (60) days after waiving service.

Although not referenced by Judge Carlson in his Order denying Plaintiff's

motion for a default judgment, the Prison Litigation Reform Act (“PLRA’”)

provides that a defendant is not obliged to file a response to a prisoner's civil

rights action unless the district court orders the defendant to do so after

finding “that the plaintiff has a reasonable opportunity to prevail on the

merits.” 42 U.S.C. §1997e(g)(2); see Brown v. S.C./. Somerset, No. 3:22-cv-

20, 2022 WL 1912914, at *1 (W.D. Pa. June 3, 2022) (“The PLRA does not

permit inmates to obtain default judgments on a claim that a defendant has

failed to respond to service (or waiver of service) of a complaint because

service in itself does not trigger any duty to respond.”). No Order with such

a finding was entered here; as such, Defendants were not obliged to file a

response in Wyatt /.

Plaintiff also could not have obtained a default judgment because he

did not follow the proper procedure for obtaining a default judgment. Federal

Rule of Civil Procedure 55, which governs the process for default judgments,

has two (2) steps. First, a plaintiff must request that the Clerk of Court enter

default against a nonresponding defendant. See Fed. R. Civ. P. 55(a)

(footnote continued on next page)

- 23 -

of intervention to address Blake’s alleged procrastination and refusal to

comply with Plaintiff's discovery demands in Wyatt |, despite Plaintiff's

requests that Judge Carlson intervene (id. 15); his refusal to acknowledge

Blake’s violation of Plaintiff's First Amendment rights when Blake sent legal

documents in Wyatt | to Smart Communications (id. ¥]]16, 17, 20); his

|| issuance of a Report and Recommendation which recommended dismissal

of Plaintiff's claims in Wyatt // (id. 18); and his issuance of the Report and

Recommendation despite Plaintiff referencing him in his complaint in this

case (id. ]19.).* Plaintiff also complains about Judge Wilson, inter alia,

ignoring his requests to intervene while Adams and Blake violated his First

Amendment rights in Wyatt | & II (id. 1116, 17, 20), adopting the Report and

Recommendation in Wyatt | (id. 18), declining to hold a telephone

(“When a party against whom a judgment for affirmative relief is sought has

failed to plead or otherwise defend, and that failure is shown by affidavit or

otherwise, the clerk must enter the party’s default.”); Universitas Educ., LLC

v. Granderson, 98 F.4th 357, 377 (1st Cir. 2024) (“Rule 55 provides a two-

step process for default judgment. Step one is entry of default under Rule

55(a)... .”). Plaintiff never requested that the Clerk of Court enter default

against Defendants in Wyatt /. Therefore, even if the PLRA allowed Plaintiff

to seek a default judgment, his filing of a motion for default judgment without

first seeking entry of default by the Clerk of Court was wholly improper.

4 This allegation is frivolous. Plaintiff commenced the instant action on or

about March 23, 2023. The dockets for Wyatt | & /] show that Judge Carlson

never issued a Report and Recommendation after the date Plaintiff filed his

complaint in this case.

- 24 -

conference to discuss the mail issues (id. J20), and concluding that Adams

and Blake were following the law when they sent legal mail to Plaintiff (/d.).

Although Plaintiff repeatedly asserts that these actions by Judges Wilson

and Carlson were “contrary to law” and constituted an “abuse of discretion”

(Doc. 14 9/4, 5), these types of allegations, i.e., where a plaintiff complains

that the Judges’ decisions were wrong, are not of the type that would bypass

the Judges’ absolute judicial immunity. See Mireles, 502 U.S. at 11-12

(explaining that judges retain their immunity even if their actions were legally

incorrect, in bad faith, malicious, or corrupt).

The Court also recognizes that Plaintiff alleges that the actions by

Judges Wilson and Carlson were “outside the scope of [their] authority.”

(Doc. 14 6, 7.) However, all their actions occurred while they were presiding

over Plaintiff's cases in Wyatt | & II, and all the acts complained of are those

within the scope of the Judges’ judicial authority. As such, Plaintiff's

conclusory allegation is not entitled to any presumption of truth, and Judges

Wilson and Carlson are absolutely immune from Plaintiff's claims against

them in their individual capacities. Accordingly, the Court will dismiss

Plaintiffs Bivens claims against Judges Wilson and Carlson.

-25 -

D. Plaintiff's Claims Against the Cities of Harrisburg and

Mechanicsburg

Plaintiffs allegations against the Cities of Harrisburg and

Mechanicsburg are based on his mistaken belief that they “are the

municipalities responsible for the [other] defendants.” (/d. J11.) Although this

Court is required to accept as true all of Plaintiff's well-pleaded facts in his

complaint, “[t]he Court is not obligated to accept as true ‘bald assertions,’

Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (internal

quotation marks omitted), ‘unsupported conclusions and unwarranted

inferences,’ Schuylkill Energy Res., Inc. v. Pennsylvania Power & Light □□□□□

113 F.3d 405, 417 (3d Cir. 1997), or allegations that are ‘self-evidently false,’

Nami v. Fauver, 82 F.3d 63, 69 (3d Cir. 1996).” Pinnavaia v. Celotex

Asbestos Settlement Tr., 271 F. Supp. 3d 705, 708 (D. Del. 2017), aff'd, No.

17-3184, 2018 WL 11446482 (3d Cir. Apr. 6, 2018). Plaintiff tries to create a

link between the individual defendants and the two (2) municipalities where

no relevant one exists. Judges Wilson and Carlson are members of the

federal judiciary, Governors Wolf and Shapiro were, and are, Governors of

the Commonwealth of Pennsylvania, and Blake, Adams, and Henry are all

Commonwealth of Pennsylvania employees. Simply because these

individuals work in the Cities of Harrisburg and Mechanicsburg does not

mean that those municipalities are responsible for them. Instead, the Cities

- 26 -

of Harrisburg and Mechanicsburg are only responsible for employees of the

Cities of Harrisburg and Mechanicsburg. Since no Defendant is employed by

the Cities of Harrisburg and Mechanicsburg, and Plaintiff is once again

attempting to sue those municipalities because the other Defendants work in

those locations, the Court will dismiss Plaintiff's Section 1983 claims against

the Cities of Harrisburg and Mechanicsburg.

E. Plaintiff's Claims Against Blake and Adams

Plaintiff believes that Blake and Adams violated his right of access to

the courts because they have not mailed him legal documents in accordance

with the DOC’s mail policy and have “lied” to Judges Wilson and Carlson

about the propriety of their practice of sending legal documents in Wyatt | &

Smart Communications. See, e.g., (Doc. 14 ]]16—-17, 23-24, 29-35, 38,

43.) The Court will dismiss these claims.

1. Section 1983

Plaintiff brings his access-to-the-courts claims against Blake and

Adams through Section 1983, which is the statutory vehicle by which private

citizens may seek redress for violations of federal constitutional rights

committed by state officials. See 42 U.S.C. §1983. This statute states in

pertinent part:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the

-

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution or laws, shall be liable to the party .

injured in an action at law, suit in equity, or other proper .

‘ proceeding for redress...

Id. “Section 1983 is not a source of substantive rights,” but is merely a means

through which “to vindicate violations of federal law committed by state

actors.” Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. -

2004) (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002)). “To

state a claim under §1983, a plaintiff must allege the violation of a right

secured by the Constitution and laws of the United States, and must show

that the alleged deprivation was committed by a person acting under color of

state law.” West Vv Atkins, 487 U.S. 42, 48 (1988).

2. Plaintiff's Official-Capacity Claims for Money Damages

Plaintiff asserts his Section 1983 access-to-the-courts claims for

damages, declaratory, and injunctive relief against Blake and Adams in their

official and individual capacities. Regarding his claims for damages against

Blake and Adams in their official capacities, they are barred by the Eleventh

Amendment to the United States Constitution.

The Eleventh Amendment provides that “[t]he Judicial power of the

United States Shall not be construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United States by Citizens of

- 28 -

another State, or by Citizens or Subjects of any Foreign State.” U.S. Const.

amend. XI. This Amendment

has been interpreted to render states—and, by extension, state

agencies and departments and officials when the state is the real

party in interest—generally immune from suit by private parties

in federal court. Indeed, it has been recognized for over two

hundred years that a state’s immunity from suit in federal court is

a fundamental principle of our constitutional structure that

preserves, as intended by the Framers, the respect and dignity

of the states and protects the ability of the states “to govern in

accordance with the will of their citizens.”

Pa. Fed’n of Sportsmen’s Clubs, Inc. v. Hess, 297 F.3d 310, 323 (3d Cir.

2002) (quoting Alden v. Maine, 527 U.S. 706, 751 (1999)). Eleventh

Amendment immunity extends to all state agencies, departments, and

entities “having no existence apart from the state.” Laskaris v. Thornburgh,

661 F.2d 23, 25 (3d Cir. 1981) (citation omitted). As such, the DOC, as an

agency of the Commonwealth of Pennsylvania, is entitled to the

Commonwealth’s Eleventh Amendment immunity. See 71 P.S. §61(a) (“The

executive and administrative work of this Commonwealth shall be performed

by the... Department of Corrections . .. .”); Lavia v. Pa., Dep’t of Corr., 224

F.3d 190, 195 (3d Cir. 2000) (stating that “[bJecause the Commonwealth of

Pennsylvania’s Department of Corrections is a part of the executive

department of the Commonwealth, it shares in the Commonwealth's

Eleventh Amendment immunity”); see also Downey v. Pa. Dep't of Corr., 968

-~29 -

F.3d 299, 310 (3d Cir. 2020) (explaining that “state sovereign immunity

prohibit[ed]” plaintiff's Section 1983 claims against the DOC). In addition, the

Pennsylvania Attorney General’s Office is entitled to the Commonwealth's

Eleventh Amendment immunity. See Malcomb v. Beaver Cnty. Pa.

(Prothonotary), 616 F. App’x 44, 45 (3d Cir. 2015) (unpublished) (affirming

district court’s dismissal of Section 1983 claims against the Pennsylvania

Attorney General’s Office because it is “immune from [the plaintiff's Section]

1983 claims under the Eleventh Amendment’): Wattie-Bey v. Att’y Gen.’s

Off., 424 F. App’x 95, 97 (3d Cir. 2011) (unpublished) (same).

In this case, Blake and Adams are both state officials for purposes of

Section 1983 because Blake is a Deputy Pennsylvania Attorney General and

Adams is counsel for the DOC. A suit for monetary damages brought against

a state official in their official capacity “is not a suit against that official but

rather is a suit against that official’s office. As such, it is no different from a

suit against the State itself.” Will v. Mich. Dep’t of State Police, 491 U.S. 58,

71 (1989) (internal citation omitted); see also Kentucky v. Graham, 473 U.S.

159, 165-66 (1985) (“Official-capacity suits . . . ‘generally represent only

another way of pleading an action against an entity of which an officer is an

agent.” (quoting Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S 658,

690 n.55 (1978))). Thus, Plaintiff's official capacity claims against Blake and

- 30 -

Adams for monetary damages are actually claims against the

Commonwealth, which is immune from such claims under the Eleventh

Amendment. See Will, 491 U.S. at 66, 70-771.

There are, however, three (3) narrow exceptions to Eleventh

Amendment immunity potentially applicable to Plaintiffs official-capacity

claims for monetary damages. The first two (2) exceptions are (1) if the state

waives its immunity or (2) Congress exercised its power under Section 5 of

the Fourteenth Amendment to override that immunity. See Graham, 473 U.S.

at 169 (“[A]bsent waiver by the State or valid congressional override, the

Eleventh Amendment bars a damages action against a State in federal

court.”). Neither of these exceptions apply here because the Commonwealth

of Pennsylvania has not waived its Eleventh Amendment immunity. See 42

Pa. C.S. §8521(b) (“Nothing contained in this subchapter shall be construed

to waive the immunity of the Commonwealth from suit in Federal courts

guaranteed by the Eleventh Amendment to the Constitution of the United

States.”); Lavia, 224 F.3d at 195 (explaining that Pennsylvania has not

waived its Eleventh Amendment immunity). In addition, Congress did not

intend to abrogate a state’s Eleventh Amendment immunity by enacting

Section 1983. See Quern v. Jordan, 440 U.S. 332, 344-45 (1979) (stating

that Ҥ1983 does not explicitly and by clear language indicate on its face an

- 31 -

intent to sweep away the immunity of the States; nor does it have a history

which focuses directly on the question of state liability and which shows that

Congress considered and firmly decided to abrogate the Eleventh

Amendment immunity of the States”).

As for the third exception, the Eleventh Amendment does not bar a

“suit[] against state officers for prospective relief to end an ongoing violation

of federal law.” MCI Telecomm. Corp. v. Bell Atl. Pa., 271 F.3d 491, 503 (3d

Cir. 2001). Therefore, to the extent that Plaintiff is seeking prospective

declaratory or injunctive relief relating to the sending of legal mail to him in

Wyatt | & Il, the Eleventh Amendment would not bar those claims against

Blake and Adams in their official capacities. The Eleventh Amendment does,

however, bar his claims for monetary damages against Blake and Adams in

their official capacities.

3. Plaintiff's Official-Capacity Claims for Declaratory and

Injunctive Relief Against Adams

To the extent that Plaintiff is seeking to obtain prospective injunctive or

declaratory relief against Adams, he cannot do so because Wyatt // is no

longer an open case insofar as the undersigned dismissed it on July 29,

2024, and directed the Clerk of Court to close the case. See Wyait //, Docs.

54, 55. In other words, there is no ongoing conduct to enjoin or declare

unconstitutional, and there is “no hint in the record of any present or imminent

- 32 -

future harm from [Adams’] alleged conduct.” Blanciak v. Allegheny Ludlum

Corp., 77 F.3d 690, 699 (3d Cir. 1996); see also CMR D.N. Corp. v. City of

Phila., 703 F.3d 612, 628 (3d Cir. 2013) (explaining that declaratory relief is

“prospective in nature” and cannot support a claim for a past injury).

Therefore, the Court will dismiss Plaintiffs official-capacity claims for

injunctive or declaratory relief against Adams.

4. Plaintiff's Official-Capacity Claims for Prospective

. Declaratory or Injunctive Relief Against Blake as well

as his Individual-Capacity Claims Against Blake and

Adams

Concerning Plaintiff's access-to-the-courts claims against Blake and

Adams in their individual capacities, as well as his official-capacity claims for

prospective declaratory and injunctive relief against Blake, he has failed to

state a claim for a denial of access to the courts upon which relief may be

granted. The law surrounding an access-to-the-courts claim has been aptly

set forth as follows:

“The right of access to the courts is sourced from both ‘the First

and Fourteenth Amendments,’ and is typically framed as a due

process right in the inmate context, but in other contexts as ‘an

aspect of the First Amendment right to petition the Government

for redress of grievances[.]” Jutrowski v. Twp. of Riverdale, 904

F.3d 280, 295 n.17 (3d Cir. 2018) (citations omitted). “It is now

established beyond doubt that prisoners have a constitutional

right of access to the courts.” Bounds v. Smith, 430 U.S. 817,

821 (1977). There are two general categories of actionable

federal claims based upon an alleged denial of access to the

courts. Christopher v. Harbury, 536 U.S. 403, 413 (2002).

- 33 -

The first category is forward-looking claims. /d. The essence of

such a claim is that official action is frustrating the plaintiff in

preparing or filing a legal action at the present time. /d. The

opportunity to litigate “has not been lost for all time, however, but

only in the short term; the object of the denial-of-access suit, and

the justification for recognizing that claim, is to place the plaintiff

in a position to pursue a separate claim for relief once the

frustrating condition has been removed.” /d.

The second category is backward-looking claims. /d. at 413-14.

Such a claim does not look forward to future litigation, “but

backward to a time when specific litigation ended poorly, or could

not have commenced, or could have produced a remedy

subsequently unobtainable.” /d. at 414 (footnotes omitted). “The

ultimate object of these sorts of access claims, then, is not the

judgment in a further lawsuit, but simply the judgment in the

access Claim itself, in providing relief obtainable in no other suit

in the future.” /d.

The ultimate justification for recognizing each kind of access

claim is the same. /d. “Whether an access claim turns on a

litigating opportunity yet to be gained or an opportunity already

lost, the very point of recognizing any access claim is to provide

some effective vindication for a separate and distinct right to seek

judicial relief for some wrong.” /d. at 414-15. The right of access

to the courts “is ancillary to the underlying claim, without which a

plaintiff cannot have suffered injury by being shut out of court.”

Id. at 415. Therefore, a plaintiff must establish an actual injury by

identifying a nonfrivolous, arguable underlying claim blocked or

lost by the alleged denial of access to the courts. /d. The

underlying cause of action, whether anticipated or lost, is an

element of the access claim. /d.

In the prison setting, “the injury requirement is not satisfied by

just any type of frustrated legal claim.” Lewis v. Casey, 518 U.S.

343, 354 (1996). Rather, in the prison setting, actual injury is the

loss of, or inability to pursue, a nonfrivolous claim that relates to

a challenge, direct or collateral, to an inmate’s conviction or

relates to a challenge to the conditions of confinement. /d. at

354-55. “Impairment of any other litigating capacity is simply one

- 34 -

of the incidental (and perfectly constitutional) consequences of

conviction and incarceration.” /d. at 355 (italics in [original]).

Talley, 2023 WL 51632389, at *8-9.

There are several problems with the merits of Plaintiff's access-to-the-

court claims, the first of those being his belief that incoming mail was sent to

him improperly or in a manner that violates the United States Constitution.

To address this claim, the Court starts with DC-ADM 803, the DOC’s mail

policy, which has been described as follows:

In September 2018, the DOC changed its mail policy regarding,

among other things, how incoming privileged and nonprivileged

mail was handled. According to the DOC, the changes were

implemented to curb entry of illicit drugs into state prisons

through the use of drug-soaked inmate mail. Under the new

policy, nonprivileged prisoner mail was to be sent to the DOC's

contracted processor—defendant Smart Communications, in St.

Petersburg, Florida—who would scan the _ nonprivileged

correspondence and provide an electronic copy that would be

printed and delivered to the prisoners at their respective facilities.

As for “privileged correspondence,” the following system was

implemented: (1) incoming privileged mail would be opened and

inspected for contraband in the inmate’s presence; (2) the

incoming privileged correspondence would then be photocopied

in the inmate's presence and a photocopy of the legal mail would

be provided to the inmate; (3) prison officials would log the

privileged correspondence in the “Legal Mail Log,” which the

inmate had to sign to receive the mail; (4) the original incoming

privileged correspondence would then be placed into a sealed

envelope inside a lockbox, ultimately to be “securely and

confidentially destroyed.”

The constitutionality of the revised policy's treatment of

privileged mail was swiftly challenged in federal court. Within a

- 35 -

matter of months, the DOC acquiesced and agreed that,

beginning on April 6, 2019, the copying and retention of inmates’

privileged correspondence would end. The use of Smart

Communications for nonprivileged correspondence, however,

remains a fixture of the DOC’s current mail system.

Travillion v. Pa. Dep’t of Corr., No. 1:18-cv-2075, 2023 WL 6796538, at *2-

3 (M.D. Pa. Oct. 13, 2023) (internal footnotes omitted).

As explained above, the DOC processes privileged and nonprivileged

incoming mail differently under DC-ADM 803. Here, Plaintiff essentially

argues that mail sent to him by Blake and Adams should have been

considered as privileged mail, thus requiring the mail to be directly sent to

him at the prison rather than to Smart Communications. He is mistaken.

DC-ADM 803 defines “Incoming Privileged Correspondence” as

follows:

Incoming Privileged Correspondence is incoming inmate mail as

described below:

a. Mail from an inmate’s attorney that is either hand-delivered to

the facility by the attorney or delivered through the mail system.

This correspondence shall contain the attorney's issued control

number and secondary authentication number, which was issued

to the sender by the Department’s Office of Chief Counsel, in

order to be accepted, processed, and delivered to the inmate.

b. Mail from a court.

c. Mail from an elected or appointed federal, state, or local official

who has sought and obtained a control number issued by the

Department’s Office of Chief Counsel. NOTE: Not. all

correspondence between an inmate and elected or appointed

- 36 -

federal, state, or local official will require privileged

correspondence processing. Control numbers will only be issued

when the underlying matter involves matters related to a

confidential investigation process or similar concerns.

DC-ADM 803, Inmate Mail and Incoming Publications Procedures Manual,

Glossary of Terms (first emphasis added).° Presuming that Blake and Adams

qualify as “elected or appointed federal, state, or local official[s],” their

correspondence to in Wyatt | & // Plaintiff would only qualify as privileged

under DC-ADM 803 if they applied for and obtained a control number from

the DOC. /d. There is no requirement under DC-ADM 803, however, that

they obtain a control number to correspond to Plaintiff. DC-ADM 803’s lack

of a requirement for Blake and Adams, as defense counsel, to obtain a

contro] number is further illustrated by the policy’s description of the

procedures for processing incoming privileged mail, which states that “[a]n

attorney, a court or an elected or appointed federal, state, or local official, or

other approved entity may request a [control number] through the [DOC’s]

5 The Court takes judicial notice of the current version of DC-ADM 803,

which became effective on August 10, 2020, and which is available on the

DOC’s public website at: https:/Awww.pa.gov/agencies/cor.html (last visited

January 24, 2025); see also Irizzary v. Kauffman, No. 4:22-cv-1892, 2023

WL 6147174, at *11 (M.D. Pa. May 15, 2023) (“The Court takes judicial

notice of DOC policy 2020 DC-ADM 803 as a matter of public record.” (citing

Leonhauser v. Long, No. 11-cv-241, 2012 WL 398642, at *3 n.2 (M.D. Pa.

Jan. 4, 2012))), report and recommendation adopted, 2023 WL 6143933

(M.D. Pa. Sept. 20, 2023).

. 37 -

public website . . . or by contracting Central Office by email . . . ." DC-ADM

803 §1.D.1.a.®

Pursuant to DC-ADM 803, the DOC would not consider

correspondence from Blake and Adams to be incoming privileged mail

because “it is not (1) mail from [Plaintiff's] attorney that was hand-delivered

to the facility or identified with a control number; (2) mail from a court; or (3)

mail from an elected or appointed federal, state, or local official who had

sought and obtained a contro] number.” Spotz v. Wetzel, No. 1:21-cv-1799,

2022 WL 743874, at *4 (M.D. Pa. Mar. 11, 2022). Instead, it would be treated

as incoming nonprivileged mail, which would have to go to Smart

Communications for processing. See Bicking v. Pa. Dep’t of Corr., No. 3:24-

cv-422, 2024 WL 4367927, at *2 (M.D. Pa. Oct. 1, 2024) (“This court has

consistently held that mail addressed to a plaintiff inmate from a defendant's

6 In the amended complaint, Plaintiff asserts that prior to the 2020

revision of DC-ADM 803, it provided that a control number “must” be

requested. See (Doc. 14 at 24—25 (“draw[ing] the courts [sic] attention” to the

2020 version of DC-ADM 803 where it states that a control number “may” be

requested, and asserting that “before this ‘2020’ revision, the word ‘may’ was

[‘must’'], and therefore before this date anyone stating[] that they were

following the policy[] were not only lying, but were also in direct violation of

said policy.” (third use of brackets in original)). Plaintiff provides no proof in

support of this allegation. Nevertheless, it appears that the prior version of

DC-ADM 803, which took effect in October 2018, did not state as Plaintiff

alleges. See Pa. Inst. Law Project v. Wetzel, No. 1:18-cv-2100 (M.D. Pa.

Oct. 30, 2018), Doc. 1-5 (attaching copy of version of DC-ADM 803, which

became effective on October 3, 2018).

~ 38 -

attorney is nonprivileged.”); see also Molina v. Kauffman, No. 4:21-cv-38,

2022 WL 1122840, at *3 (M.D. Pa. Apr. 14, 2022) (rejecting plaintiff's

argument that Court had directed defense counsel to obtain a control

number, and explaining that “correspondence between counsel for

Defendants and Plaintiffs is not otivileged mail and must be sent to [the]

DOC’s mail processing facility, Smart Communication[s]”). Therefore, Blake

and Adams were complying with DC-ADM 803 when they sent

correspondence to Smart Communications rather than directly to Plaintiff in

Wyatt | & Il. .

In the end, Plaintiff appears to have an issue with DC-ADM 803 lacking

a requirement that Blake and Adams obtain a contro] number before sending

correspondence in Wyatt | & // to him. More specifically, he appears to argue

that this is unconstitutional based on several nonprecedential cases

concluding that “legal mail” includes mail such as the mail he received from

Blake and Adams in Wyatt | & // and legal mail must be opened in the

presence of the inmate. See (Doc. 14 [37 (citing cases)). This argument is

also unavailing because any challenge to the constitutionality of DC-ADM

803 would need to be asserted against the DOC, and not against any of the

Defendants named in this case, who are simply following the DOC’s policy

for incoming mail. But see Thompson v. Ferguson, No. 19-cv-4580, 2020

- 39 -

WL 7872629, at *10 (E.D. Pa. Dec. 31, 2020) (“Thompson’s allegations

regarding the DOC’s policy of classifying mail from the District Attorney’s

Office without a control number as non-legal mail, and opening it outside his

presence, do not state a claim for an unconstitutional violation of his freedom

of speech.”). Further, and perhaps more importantly, the Third Circuit has

already found that the DOC’s policy (albeit in a prior version of DC-ADM 803)

not to require federal, state, or local agency officials (or even the courts) to

obtain a control number to send mail to state inmates did not violate the

Constitution. See Fontroy v. Beard, 559 F.3d 173 (3d Cir. 2009). In reaching

this conclusion, the Third Circuit expressed “concern[] that the Inmates

cannot force attorneys and courts to obtain and use Control Numbers,” noted

that “some attorneys and all courts have refused the Inmates’ repeated

requests to do so,” and “acknowledge[d] that these problems make the

DOC’s new mail policy a less-than-ideal means of accommodating the

Inmates’ important First Amendment rights.” /d. at 180-81. Nevertheless, the

Third Circuit pointed out that “alternatives are, in fact, available under the

DOC’s new policy,” which was all the Supreme Court required in Turner v.

Safley, 482 U.S. 78 (1987), and explained that:

the Inmates have alternative means of ensuring that their First

Amendment rights are not infringed upon. Control Numbers are

easily obtained upon request and, when used, allow the Inmates

to communicate with attorneys and courts just as they did under

- AQ -

the DOC's old mail policy. In addition, the DOC treats hand-

delivered court and attorney correspondence as Privileged

Correspondence even without a Control Number, and attorneys

can communicate with inmates by phone or in-person.

Id. at 180. Overall, while recognizing that the DOC conceded that its “new

mail policy impinge[d] on the Inmates’ First Amendment rights because at

least some legal mail is opened and inspected outside of the Inmates’

presence,” the Third Circuit upheld the policy because it found that the policy

was reasonably related to the DOC’s legitimate penological interest to

prevent contraband from entering its prisons. /d. at 178-80. Accordingly,

Plaintiff's argument that Blake and Adams violated his right of access to the

courts based solely on how they mailed documents to him in Wyatt | & //

lacks merit.

In addition, even if there had been an issue with how Blake and Adams

sent documents to him in Wyatt / & Il, Plaintiff has still failed to state an

actionable access-to-the-courts claim because he has not plausibly alleged

that he suffered an actual injury insofar as he fails to identify a nonfrivolous,

arguable underlying claim blocked or lost by the alleged denial of access to

the courts.

Looking first at Wyatt /, which is assigned to the undersigned, it is still

ongoing, and there are motions for summary judgment currently pending.

Plaintiff has not identified a simple arguable underlying claim that has been

~ 41 -

blocked or lost by the alleged denial of access to the courts in this case.

Moreover, the only allegation in the amended complaint relating to an

arguably adverse event in the case is when Plaintiff alleges that he belatedly

received a copy of a defense motion because it was first sent to Smart

Communications. (Doc. 14 J 17.) However, Plaintiff acknowledges that he

sought an extension of time to respond to the motion due to its late receipt,

and Judge Carlson granted the motion. (/d.) While Plaintiff points out that

Judge Carlson apparently stated that no further extensions would be given

unless compelling circumstances were shown, Plaintiff does not allege that

he sought any further extensions due to delays in receipt of mail from Blake

which were denied. The docket for the case also does not reflect any such

requests or denials. Therefore, Plaintiff has failed to plead an actual injury in

Wyatt I.

Regarding Wyatt II, as stated above, the undersigned dismissed

Plaintiff's second amended complaint and directed the Clerk of Court to close

the case via a Memorandum and Order issued on July 29, 2024. Although

this matter is closed, Plaintiff identifies only two (2) alleged injuries due to his

purported lack of access to the courts. The first of those injuries was when

he did not receive Judge Carlson’s Report and Recommendation on

Defendants’ motion to dismiss, due to it being returned to sender, until after

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he received Judge’s Wilson’s Order adopting the Report and

Recommendations and dismissing his official-capacity claims against

Defendants with prejudice and his individual-capacity claims against

Defendants without prejudice to him filing an amended complaint. (/d. 918)

The second of those alleged injuries was when he claims to not have

received an Order from Judge Wilson deeming a motion for reconsideration

withdrawn due to his failure to file a supporting brief. (/d. 921.) These

allegations are insufficient to state a plausible claim against Adams because

she would not have been the one sending Plaintiff those documents, rather,

it would have been the Clerk of Court. Furthermore, Plaintiff has not shown

that these events resulted in a nonfrivolous, arguable underlying claim

blocked or lost by the alleged denial of access to the courts, especially

considering that the Court ultimately determined that he failed to allege any

Section 1983 claim upon which relief may be granted in dismissing his

operative complaint.’

7 In the amended complaint, Plaintiff criticizes the Report

recommending the dismissal of his original complaint and Judge Wilson's

Order adopting the Report because it dismissed his claims against

Defendants in their official capacities in their entirety because they were

barred by the Eleventh Amendment, even though he had also included

claims for declaratory and injunctive relief in his complaint. See (id. 918). It

appears from a review of the docket that Judge Carlson had recommended

that Plaintiff's claims for monetary damages against Defendants in their

(footnote continued on next page)

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In conclusion, Plaintiff's claims against Blake and Adams in their official

capacities (to the extent he seeks monetary damages) are barred by the

Eleventh Amendment, and his official-capacity claims for prospective

declaratory and injunctive relief as well as his individual-capacity claims will

be dismissed for the failure to state plausible claims for lack of access to the

courts.

F. Plaintiff's Claims Against Governor Wolf, Governor Shapiro

and Henry

Plaintiff has asserted Section 1983 individual- and official-capacity

claims against former Governor Wolf, Governor Shapiro, and Henry

essentially based on their roles in employing Blake and Adams. (/d. {[{] 8—

10.) He alleges that if they submit affidavits indicating that they did not

approve of Blake and Adams's methods of mailing him documents in Wyatt

| & Il, he will dismiss them from the amended complaint. (/d.) The Court will

also dismiss these claims.

official capacities be dismissed, see Wyatt I/, Doc. 22 at 9-11, and Judge

Wilson dismissed those official-capacity claims in their entirety, see id., Doc.

23 at 2. Nevertheless, even if the dismissal of Plaintiffs claims for injunctive

or declaratory relief against Defendants in their official capacities was

somehow in error, the constitutional claims underlying those requests for

relief were ultimately dismissed. As such, Plaintiff suffered no injury from the

dismissal of those official-capacity claims.

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1. Section 1983 Official-Capacity Claims for Monetary

Damages Against Defendants

To the extent that Plaintiff has asserted Section 1983 claims for

monetary damages against these Defendants, the Eleventh Amendment

bars them for the reasons stated in dismissing Plaintiffs similar claims

against Blake and Adams.

2. Section 1983 Official-Capacity Claims for Prospective

Declaratory or Injunctive Relief Against Former

Governor Wolf

To the extent Plaintiff seeks prospective declaratory or injunctive relief

against former Governor Wolf, those claims will be dismissed because

Plaintiff cannot obtain declaratory or injunctive relief against the former

Governor. See Tatel v. Mt. Lebanon Sch. Dist., No. 22-cv-837, 2024 WL

4362459, at *50 (W.D. Pa. Sept. 30, 2024) (“There is no need to issue

declaratory relief against [former school district superintendent and former

assistant superintendent] because both of them are retired.”); Cook v.

Corbett, No. 14-cv-5895, 2015 WL 4111692, at *12 (E.D. Pa. July 8, 2015)

(concluding claim seeking injunctive relief against former governor was moot

because he left office); Bey v. Pa. Dep’t of Corr., 98 F. Supp. 2d 650, 658

(E.D. Pa. 2000) (determining that plaintiff's official-capacity claim for

injunctive relief against former prison Superintendent was moot), see also

Andela v. Admin. Off. of U.S. Cts., 569 F. App’x 80, 83 (3d Cir. 2014)

- 45 -

(unpublished) (“Declaratory judgments are meant to define the legal rights

and obligations of the parties in the anticipation of some future conduct.”).

3. Section 1983 Individual-Capacity Claims Against

Defendants and _ Official-Capacity Claims for

Prospective Declaratory or Injunctive Relief Against

Governor Shapiro and Henry

As indicated above, Plaintiff has not alleged that Governor Wolf,

Governor Shapiro, or Henry committed any acts to directly violate his

constitutional rights. Instead, his claims against them are solely supervisory

in nature. To the extent Plaintiff is asserting Section 1983 claims against

these Defendants based merely on allegations that they supervised Blake or

Adams, he cannot do so because liability under Section 1983 cannot be

predicated on respondeat superior. See Chavarriaga v. N.J. Dep’t of Corr.,

806 F.3d 210, 227 (3d Cir. 2015) (“[Plaintiff] cannot predicate liability on her

§1983 claims on a respondeat superior basis.” (citing Rode v. Dellarciprete,

845 F.2d 1195, 1207 (3d Cir. 1988)) (emphasis omitted)); Robinson v.

Delbalso, No. 22-2378, 2022 WL 17248100, at *2 (3d Cir. Nov. 28, 2022)

(‘We agree with the District Court that Robinson’s second amended

complaint did not state a plausible claim for relief. First, he failed to allege

the defendants’ personal involvement, and he cannot predicate liability on

his §1983 claims on a respondeat superior basis.” (internal citations

omitted)). Instead, if Plaintiff seeks to hold these Defendants liable for

. 46 -

unconstitutional acts by their alleged subordinates, his allegations must

satisfy one of two theories of supervisory liability: First, “[i]ndividual

defendants who are policymakers may be liable under §1983 if it is shown

that such defendants, with deliberate indifference to the consequences,

established and maintained a policy, practice or custom which directly

caused [the] constitutional harm[;]” and second, “a supervisor may be

personally liable under §1983 if he or she participated in violating the

plaintiff's rights, directed others to violate them, or, as the person in charge.

had knowledge of and acquiesced in his subordinates’ violations.” A.M. ex

rel. J.M.K. v. Luzerne Cnty. Juv. Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)

(citation omitted); see Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d

Cir. 2014) (explaining requirements for supervisory liability in section 1983

claim and describing “two general ways in which a supervisor-defendant may

be liable for unconstitutional acts undertaken by subordinates”), rev’d on

other grounds sub nom., Taylor v. Barkes, 575 U.S. 822 (2015).

To allege a plausible claim for supervisory liability under the first

theory—the policy-and-practice strand of supervisory liability—a_ plaintiff

must

(1) identify the specific supervisory practice or procedure that the

supervisor failed to employ, and show that (2) the existing

custom and practice without the identified, absent custom or

procedure created an unreasonable risk of the ultimate injury, (3)

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the supervisor was aware that this unreasonable risk existed, (4)

the supervisor was indifferent to the risk; and (5) the underling’s

violation resulted from the supervisor's failure to employ that

supervisory practice or procedure. Put another way, the inmate

must identify the supervisor's specific acts or omissions

demonstrating the supervisor's deliberate indifference to the

inmate’s risk of injury and must establish a link between the.

supervisor, the act, and the injury.

Chavarriaga, 806 F.3d at 227 (quoting Brown v. Muhlenberg Twp., 269 F.3d

205, 216 (3d Cir. 2001)). For the second theory of supervisory liability—

participating in, directing others to, or knowledge and acquiescence of

constitutional violation—generalized allegations that a supervisory

defendant is “in charge of’ or “responsible for” an office or facility are

insufficient to allege personal involvement in an underlying constitutional

violation. See Saisi v. Murray, 822 F. App’x 47, 48 (8d Cir. 2020)

(unpublished) (“Saisi asserted that some defendants were in charge of

agencies that allowed this to happen, and that liability stemmed merely from

defendants’ ‘belief that their conduct would be ‘tolerated.’ However, a

director cannot be held liable ‘simply because of [their] position as the head

of the [agency].” (quoting Evancho v. Fisher, 423 F.3d 347, 354 (3d Cir.

2005))); Zigler v. Warren, No. 21-cv-19474, 2022 WL 903383, at *2 (D.N.J.

Mar. 28, 2022) (“In simpler terms, a supervisor is not liable for the

unconstitutional conduct of his employees solely because he is a

supervisor.”). Additionally, “[a]lthough a court can infer that a defendant had

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contemporaneous knowledge of wrongful conduct from the circumstances

surrounding a case, the knowledge must be actual, not constructive.”

Chavarriaga, 806 F.3d at 222 (citing Baker v. Monroe Twp., 50 F.3d 1186,

1194 (3d Cir. 1995); Rode, 845 F.2d at 1201 n.6).

Here, Plaintiffs allegations do not satisfy the second theory of

supervisory liability because there are no allegations that Governor Wolf,

Governor Shapiro, or Harry participated in violating his rights, directed

Adams or Blake to violate them, or, despite knowing what was happening

with Plaintiff's incoming mail, acquiesced in any violation. In addition,

Plaintiff's allegations do not satisfy the first theory of supervisory liability

because he has not identified a policy, practice, or custom they established.

Moreover, Plaintiff has failed to state a plausible claim under either theory of

supervisory liability because he has not shown that his right of access to the

courts has been violated. Accordingly, the Court will dismiss these claims for

Plaintiff's failure to state a plausible claim for relief.

G. Leave to Amend

Having determined that Plaintiffs claims against Defendants in his

amended complaint are subject to dismissal, the Court must decide whether

to grant him leave to file a second amended complaint. Although district

courts should generally give leave to amend, they may dismiss a complaint

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with prejudice where leave to amend would be inequitable or futile. See

Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252

(3d Cir. 2007) (“{I]n civil rights cases district courts must offer amendment—

irrespective of whether it is requested—when dismissing a case for failure to

state a claim unless doing so would be inequitable or futile.”); Grayson v.

Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (“When a plaintiff

does not seek leave to amend a deficient complaint after a defendant moves

to dismiss it, the court must inform the plaintiff that [they have] leave to

amend within a set period of time, unless amendment would be inequitable

or futile.”). “In determining whether [amendment] would be futile, the district

court applies the same standard of legal sufficiency as [it] applies under Fed.

R. Civ. P. 12(b)(6).” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410,

1434 (3d Cir. 1997).

In this case, the Court will not grant Plaintiff leave to file a second

amended complaint because doing so would be futile. There are no

allegations that Plaintiff could include in a second amended complaint which

would allow his claims against Defendants to move forward. He cannot

assert Section 1983 claims against the Cities of Harrisburg and

Mechanicsburg simply because the individual Defendants allegedly work in

those locations. He also cannot proceed with a class action or bring claims

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on behalf of other state inmates. In addition, he is not entitled to a Bivens

remedy for any claims against Judges Wilson and Carlson and even if such

a remedy was recognized, he cannot bring a Bivens claim against them in

their official capacities and judicial immunity bars his claims against them in

their individual capacities. Furthermore, Plaintiff's Section 1983 official-

capacity claims against Blake, Adams, Governor Wolf, Governor Shapiro,

and Harry, to the extent they are not barred by the Eleventh Amendment or

moot, fail to state a plausible claim because, inter alia, his allegations do not

establish that any constitutional violation occurred. Accordingly, although the

Court will dismiss without prejudice Plaintiff's Section 1983 official-capacity

claims insofar as they are barred by the Eleventh Amendment, see, e.g.,

Merritts v. Richards, 62 F.4th 764, 772 (3d Cir. 2023) (explaining that

“Eleventh Amendment immunity is a threshold, nonmerits issue that does not

entail any assumption by the court of substantive law-declaring power, and

a dismissal on that basis, like dismissals for lack of jurisdiction, should

normally be without prejudice” (internal citations and quotation marks

omitted)), he may not replead those claims. All other claims will be dismissed

with prejudice.

-51-

IV. CONCLUSION

Based on the aforesaid, the Court will dismiss the amended complaint

without granting Plaintiff leave to file a second amended complaint. An

appropriate Order follows.

bile a E. MANNION

United\States District Judge

pate: 2/d/25°

23-cv-0509-01

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