# ROSA-DIAZ

> District Court, W.D. Pennsylvania · August 14, 2018

URL: https://www.frixlaw.com/law-library/cases/11341998

## Case

- **Full name:** GABRIEL ROSA-DIAZ v. M. OVERMYER, et al.
- **Court:** District Court, W.D. Pennsylvania
- **Decided:** August 14, 2018
- **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/11341998

## How later opinions describe it (automated extraction)

- holding that § 1983 plaintiff is required to show that supervisor personally participated in violating her rights, that he directed others to violate her rights, or that he had knowledge of and acquiesced in his subordinates' violations

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

GABRIEL ROSA-DIAZ, )
Plaintiff )
)
vs. ) C.A.No. 16-155Erie
) District Judge Gibson
M. OVERMYER, et al, ) Magistrate Judge Baxter
Defendants. )

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

I. RECOMMENDATION
It is hereby recommended that the motion to dismiss [ECF No. 59] should be granted in
part and denied in part, as follows:
- Granted as to Overmyer, Mongelluzzo, and Varner based on Plaintiff’s failure
to sufficiently allege their personal involvement in any constitutional
violation. The Clerk should be directed to terminate these three Defendants
from the docket;

- Denied as to the access to courts claim; and
- Granted as to the due process claim based on the loss of and damage to
Plaintiff’s personal property.

II. REPORT
A. Procedural History
Plaintiff, acting pro se, initiated the instant civil action on June 21, 2016. In his original
complaint, Plaintiff named seventeen individual Defendants and set forth six separate factual
scenarios which based his legal claims. On November 14, 2016, Plaintiff filed an Amended
Complaint adding twenty-six additional Defendants to the caption and expanding the number of
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factual scenarios to twenty-six. Large portions of the Amended Complaint were later severed by
this Court, limiting this action to the factual allegations and legal claims against current
Defendants Friedline, Schlemmer, Heffernan, Siegel, Mongelluzzo, Overmyer, and Varner. ECF
No. 42; ECF No. 45.
Thereafter, Plaintiff was allowed to file a Second Amended Complaint, which remains

the operative complaint in this action. ECF No. 58. Plaintiff alleges that in July 2014 after being
transferred to SCI Forest, Defendants confiscated and later destroyed his personal property and
legal materials related to a pending civil rights action thereby violating his constitutional rights.
In response, Defendants filed a motion to dismiss [ECF No. 58] and Plaintiff filed a brief
in opposition [ECF No. 62]. This dispositive motion is fully briefed and is ripe for disposition by
this Court.

B. Standards of Review
1. Pro Se Litigants

Pro se pleadings, “however inartfully pleaded,” must be held to “less stringent standards
than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-521 (1972). If
the court can reasonably read pleadings to state a valid claim on which the litigant could prevail,
it should do so despite failure to cite proper legal authority, confusion of legal theories, poor
syntax and sentence construction, or litigant’s unfamiliarity with pleading requirements. Boag v.
MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552,
555 (3d Cir. 1969) (petition prepared by a prisoner may be inartfully drawn and should be read
“with a measure of tolerance”); Smith v. U.S. District Court, 956 F.2d 295 (D.C.Cir. 1992);
Freeman v. Dep’t of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading

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rules, during the initial stages of litigation, a district court should construe all allegations in a
complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997). See, e.g.,
Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (discussing Fed.R.Civ.P. 12(b)(6) standard);
Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990) (same). Because Plaintiff is
a pro se litigant, this Court may consider facts and make inferences where it is appropriate.

2. Motion to dismiss
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be
viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the
complaint must be accepted as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). A complaint
must be dismissed pursuant to Rule 12 (b)(6) if it does not allege “enough facts to state a claim
to relief that is plausible on its face.” Twombly, 550 U.S. at 570.
A Court need not accept inferences drawn by a plaintiff if they are unsupported by the
facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp.,

394 F.3d 126, 143 (3d Cir. 2004) citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906
(3d Cir. 1997). A plaintiff’s factual allegations “must be enough to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at 556, citing 5 C. Wright & A. Miller, Federal
Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004). Although the United States Supreme
Court does “not require heightened fact pleading of specifics, [the Court does require] enough
facts to state a claim to relief that is plausible on its face.” Id. at 570.
In other words, at the motion to dismiss stage, a plaintiff is “required to make a ‘showing’
rather than a blanket assertion of an entitlement to relief.” Smith v. Sullivan, 2008 WL 482469,
at *1 (D. Del.) quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). “This

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‘does not impose a probability requirement at the pleading stage,’ but instead ‘simply calls for
enough facts to raise a reasonable expectation that discovery will reveal evidence of’ the
necessary element.” Phillips, 515 F.3d at 234, quoting Twombly, 550 U.S. at 556 n.3.
The Third Circuit has expounded on the Twombly/Iqbal line of cases:

To determine the sufficiency of a complaint under Twombly and Iqbal, we
must take the following three steps:

First, the court must ‘tak[e] note of the elements a plaintiff must plead to state
a claim.’ Second, the court should identify allegations that, ‘because they are
no more than conclusions, are not entitled to the assumption of truth.’ Finally,
‘where there are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement
for relief.’

Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) quoting Santiago v.
Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010).

C. Plaintiff’s Allegations1
On July 1, 2014, Plaintiff was transferred into SCI Forest, where he was temporarily
housed in the Restricted Housing Unit pending a review by the Program Review Committee.
ECF No. 58, ¶ 13. On July 9, 2014, Plaintiff was handcuffed and escorted to the property room
by Defendant Correctional Officer Friedline whereupon he found most of his legal papers were
out of the brown manila envelopes in which Plaintiff kept them filed and organized. Id. at ¶ ¶ 14-

1 Plaintiff makes broad legal claims of violations of the Fourth and Eighth Amendments, as well
as his right to privacy, along with state law claims including negligence. Plaintiff’s assertions in
this regard are without merit. Even a liberal review of Plaintiff’s complaint reveals one basic
claim in this case – denial of the right of access to courts. The Court need not accept a pro se
litigant’s legal conclusions set forth as factual allegations. Twombly, 550 U.S. at 555, citing
Papasan v. Allain, 478 U.S. 265, 286 (1986).

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15. Friedline then presented Plaintiff with a pre-written DC-153 Property Inventory Sheet on
which Friedline had already cataloged all of Plaintiff’s personal property and told Plaintiff to
select what property Plaintiff wanted to retain in his RHU cell. Id. at ¶ 16. Plaintiff complains
that Friedline’s inventorying of his property outside of his presence was a violation of
Department of Corrections Policy DC-ADM 815. Id. at ¶ 17. Plaintiff later filed a grievance

(518224) relating to Friedline’s actions. Id. at ¶ 24.
Plaintiff chose the papers he believed he needed in order to prosecute his pending civil
rights case of Rosa-Diaz v. Dow and was then escorted back to his cell. Once back at his cell,
Plaintiff’s handcuffs were removed and he was able to go through those legal papers. Upon his
review of the documents in the brown manila envelope, Plaintiff realized that Friedline had
removed all the documents pertaining to the Dow litigation and substituted filings related to an
old criminal case. Id. at ¶ 23.
Plaintiff sought to have an exchange of his legal materials by filing a request on July 15th
advising that he had an impending court deadline. Id. at ¶ 27. Plaintiff’s request was denied by

Defendant Schlemmer who also read Plaintiff’s legal documents. Id. at ¶ ¶ 28-29. When Plaintiff
verbally complained to Schlemmer following that denial, Schlemmer told Plaintiff he was
instructed to deny Plaintiff’s request by Defendants Heffernan and Siegel. Id. at ¶ 31.
Plaintiff filed a grievance (519216) related to the actions of Schlemmer, Heffernan and
Siegel. Id. at ¶ 52. The denial of the grievance, which Plaintiff claimed contained inaccuracies,
was authored by Defendant Mongelluzzo. Id. at ¶ 56. Plaintiff claims that by denying the
grievance and upholding the actions of Schlemmer, Heffernan, and Siegel, Defendant
Mongelluzzo violated his right of access to the courts. Id. Plaintiff appealed Mongelluzzo’s

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decision to Horton and Overmyer who affirmed it, and then appealed that decision to Varner who
upheld it. Id. at ¶ ¶ 62-69.
Upon his release from RHU in mid-August, Plaintiff was allowed to inspect all of his
personal property whereupon he discovered his personal address book was missing from his
property. Id. at ¶ 76. Plaintiff also discovered that all of his papers related to the Dow case were

missing and that his radio had been vandalized. Id. Plaintiff filed a grievance (523973) regarding
Defendant Friedline’s alleged theft of the address book and legal papers and vandalism of his
radio. Id. at ¶ 80. Defendant Mongelluzzo denied the grievance. Id. at ¶ ¶ 83-90. Overmyer
upheld Mongelluzzo’s response on appeal and Varner upheld the response on final review. Id. at
¶ ¶ 103-108.
Plaintiff alleges that Friedline intentionally threw Plaintiff’s address book away in
retaliation for Plaintiff’s use of the court system and to prevent him from contacting his family
and friends in Puerto Rico. Id. at ¶ ¶ 92- 95.

D. Personal Involvement of Defendants
The Commonwealth argues that several Defendants (excluding Friedline and Schlemmer)
should be dismissed from this action because Plaintiff has failed to allege facts sufficient to
support their personal involvement. This Court agrees in part.
To establish a § 1983 claim, a plaintiff must prove that a defendant, acting under color of
state law, deprived the plaintiff of a right secured by the Constitution or laws of the United
States. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995); Estate of Smith v.
Marasco, 430 F.3d 140, 151 (3d Cir. 2005); 42 U.S.C. § 1983. It is well-settled that liability
under § 1983 requires a defendant's “personal involvement” in the deprivation of a constitutional

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right. See Gould v. Wetzel, 2013 WL 5697866, at *2 (3d Cir. Oct.21, 2013) citing Argueta v.
U.S. Immigration & Customs Enforcement, 643 F.3d 60, 73 (3d Cir. 2011). This means that the
defendant must have played an “affirmative part” in the complained-of misconduct. Ashcroft v.
Iqbal, 556 U.S. 662, 677 (2009) (“In a § 1983 suit ... [a]bsent vicarious liability, each
Government official, his or her title notwithstanding, is only liable for his or her own

misconduct.”); Oliver v. Beard, 358 Fed.App’x 297, 300 (3d Cir. 2009); Chinchello v. Fenton,
805 F.2d 126, 133 (3d Cir. 1986).
Although a supervisor cannot encourage constitutional violations, “a supervising public
official has [no] affirmative constitutional duty to supervise and discipline so as to prevent
violations of constitutional rights by his or her subordinates.” Chinchello, 805 F.2d at 133;
Brown v. Grabowski, 922 F.2d 1097, 1120 (3d Cir. 1990) cert. denied, 501 U.S. 1218 (1991).
Section 1983 liability cannot be predicated solely on the theory of respondeat superior. Rizzo v.
Goode, 423 U.S. 362 (1976). See also Monell v. Department of Social Services, 436 U.S. 658
(1978) (superiors of line officers who act in violation of constitutional rights may not be held

liable on a theory of vicarious liability merely because the superior had a right to control the line
officer's actions); Robinson v. City of Pittsburgh, 120 F.3d 1286, 1293-95 (3d Cir. 1997)
(holding that § 1983 plaintiff is required to show that supervisor personally participated in
violating her rights, that he directed others to violate her rights, or that he had knowledge of and
acquiesced in his subordinates' violations).
In the context of a defendant who is alleged to have performed in a supervisory role,
courts have identified two general instances in which either the conduct of that supervisor-
defendant or the policies/procedures of that supervisor-defendant may amount to personal
involvement and thereby warrant a finding of individual, supervisory liability for a constitutional

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tort: First, supervisory liability may attach if the supervisor personally “participated in violating
the plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge
of and acquiesced” in a subordinate's unconstitutional conduct. A.M. ex rel. J.M.K. v. Luzerne
Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) citing Baker v. Monroe Twp., 50 F.3d
1186, 1190-91 (3d Cir. 1995). Second, liability may attach if the supervisor, “with deliberate

indifference to the consequences, established and maintained a policy, practice or custom which
directly caused [the] constitutional harm.” Id. quoting Stoneking v. Bradford Area Sch. Dist.,
882 F.2d 720, 725 (3d Cir. 1989).
Plaintiff has sufficiently pled the personal involvement of Defendants Heffernan and
Siegel for their part in directing the denial of Plaintiff’s request for an exchange of legal
materials. See ECF No. 58, at ¶ 31. As to Defendants Overmyer, Mongelluzzo, and Varner,
Plaintiff’s allegations against these individuals are all based on their participation in the
grievance misconduct review process. The denial of Plaintiff’s grievances and/or misconducts
does not, in itself, satisfy the requisite “personal involvement” requirement. Mincy v.

Chmielsewski, 508 Fed.App’x 99, 104 (3d Cir. 2013) (“[A]n officer’s review of, or failure to
investigate, an inmate’s grievances generally does not satisfy the requisite personal
involvement.”); Rogers v. United States, 696 F.Supp.2d 472, 488 (W.D. Pa. 2010) (“If a
grievance official’s only involvement is investigating and/or ruling on an inmate’s grievance
after the incident giving rise to the grievance has already occurred, there is no personal
involvement on the part of that official.”). Overmyer, Mongelluzzo and Varner should be
dismissed from this action. To the extent that Plaintiff alleges that all of these Defendants

8
somehow acted in concert to deny his grievances, such a claim does not support the necessary
personal involvement for § 1983 liability.2
Accordingly, the motion to dismiss should be granted as to Overmyer, Mongelluzzo, and
Varner.

E. Access to Courts
Defendants move to dismiss this claim arguing that Plaintiff has failed to state an access
to courts claim.
Prisoners have a constitutional right to “adequate, effective, and meaningful” access to
the courts. Bounds v. Smith, 430 U.S. 817 (1977).3 Inmates can only proceed on access to courts
claims in two types of cases, direct or indirect challenges to their criminal sentences and civil
rights actions relating to their conditions of confinement. Lewis v. Casey, 518 U.S. 343, 355
(1996) (the “[i]mpairment of any other litigating capacity is simply one of the incidental (and
perfectly constitutional) consequences of conviction and incarceration.”). In so-called backward-

looking access cases “where prisoners assert that defendants’ actions have inhibited their

2 Furthermore, for the same reasons, none of Plaintiff’s allegations are sufficient to state a civil
conspiracy claim under § 1983. See Capogrosso v. Sup. Ct. of N.J., 588 F.3d 180, 185 (3d Cir.
2009) (“[A]llegations of a conspiracy must provide some factual basis to support the existence of
the elements of a conspiracy: agreement and concerted action.”); Wardell v. City of Erie, 2015
WL 6134014, at * 11 (W.D. Pa. Oct. 16, 2015) quoting Loftus v. Southeastern Pa. Transp. Auth.,
843 F.Supp. 981, 987 (E.D. Pa. 1994) (“while the pleading standard under Rule 8 is a liberal one,
mere incantation of the words ‘conspiracy’ or ‘acted in concert’ does not talismanically satisfy
the Rule’s requirements.”).

3 The right of access to courts may arise in the context of the Article IV Privileges and
Immunities Clause, the First Amendment Petition Clause, the Fifth Amendment Due Process
Clause, and the Fourteenth Amendment Equal Protection Clause. See Christopher v. Harbury,
536 U.S. 403, 415 n.12 (2002).
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opportunity to present a past legal claim,” the Third Circuit has succinctly stated the elements a
plaintiff must plead:
“[T]hey must show (1) that they suffered an ‘actual injury’ in that they lost a
chance to pursue a ‘nonfrivolous’ or ‘arguable’ underlying claim; and (2) that
they have no other ‘remedy that may be awarded as recompense’ for the lost
claim other than in the present denial of access suit.”

Monroe v. Beard, 536 F.3d 198, 205-06 (3d Cir. 2008) explaining the standard set forth in
Christopher v. Harbury, 536 U.S. 403, 415 (2002). Furthermore, the complaint must plead
sufficient facts to describe the underlying arguable claim “well enough to show that it is ‘more
than mere hope’” and it must describe the lost remedy. Monroe, 536 F.3d at 205.
Here, Plaintiff alleges that the loss of his legal property, beginning in July 2014 upon his
transfer to SCI Forest, resulted in actual injury in that several Defendants were dismissed from
his civil rights action Rosa-Diaz v. Dow, C.A. No. 3:14-cv-05, based on his failure to allege their
personal involvement.4 In assessing Plaintiff’s alleged lost claims, the Court takes judicial notice
of the docket in the action identified by Plaintiff to determine whether any underlying claim has

4 As his injury, Plaintiff pleads:
Plaintiff had suffered irreparable injury in a court of law by the denial of Defendant CO
Schlemmer in not allowing Plaintiff access to Plaintiff legal papers, as Plaintiff was
unable to obtain help from other prisoners with knowledge of the law to help Plaintiff
prepare meaningful papers to the court, which resulted in Plaintiff not being able to
properly amend his active civil complaint “Gabriel Rosa Diaz v. Sgt. Dow, et al, No.
3:14-cv-00005” which result in the dismissal of Defendants Robert Reed (H.Ex.),
Kenneth Cameron (F.M.) Adam Beck (accountant), Lewis (Chief Hearing Examiner);
and John Wetzel (Secretary of Department of Corrections); which result in the dismissal
of Plaintiff claims of violation to ‘due process and deliberate indifference’ protected by
the Eighth and Fourteenth Amendments to the U.S. Constitution, and because those
claims have been dismissed and forever lost, now Plaintiff suffer irreparable harm in
court to which Plaintiff is being forced to pay outstanding medical bills of $31,414.30 to
the Department of Corrections officials.”

ECF No. 58, ¶ 35.
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been lost or otherwise impeded, and to determine whether the claim asserted is frivolous. See,
e.g., Keeling v. Barrager, 2014 WL 1338077, at *12 (M.D.Pa. Apr. 3, 2014), aff'd, 666
Fed.App’x 153 (3d Cir. 2016).5
In their motion to dismiss, Defendants argue that by examining the docket for the
procedural history of the underlying case, it is evident that Plaintiff’s access to courts was not

denied as, during the relevant time frame, he was able to file a brief in opposition to a motion to
dismiss, as well as an amended complaint. ECF No. 60, pages 3-5.6 Examining the docket for the
procedural history alone is not enough here. Defendants’ view is both an oversimplification of
Plaintiff’s claim and of what it means to have access to courts.
Plaintiff’s claim is not simply limited to his inability to access the legal materials during
July 2014. Plaintiff claims he was denied access 1) when he was unable to access his legal
materials while he was in RHU and 2) later after his release from RHU, when his legal materials

5 In ruling on a Rule 12(b)(6) motion, courts generally consider only the complaint, exhibits, and
matters of public record. Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014). An exception to
this general rule is “undisputedly authentic documents if the complainant’s claims are based
upon these documents.” Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) citing Pension
Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). A court
may consider “items subject to judicial notice,” without converting the motion to dismiss into
one for summary judgment. Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006)
quoting 5B Charles A. Wright and Arthur R. Miller, FEDERAL PRACTICE AND
PROCEDURE § 1357 (2004).

6 Defendants argue: “Acknowledging the simple chronology of when Plaintiff filed his
opposition in the past legal action and when the alleged wrongs purported occurred dictates that
Plaintiff did not lose a chance to pursue any claim or oppose any attack asserted in the motion to
dismiss filed in the other action. […] The litigation history establishes that Plaintiff filed his
Amended Complaint in a timely manner in accordance with an extension granted by the Court
and Plaintiff filed a timely opposition to the motion to dismiss. No actions by Defendants that
may have occurred in July 2014 caused Plaintiff to lose a chance to pursue his claim in the past
legal action.” ECF No. 60, pages 4-5.
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had been destroyed. Defendants’ argument in support of their motion to dismiss limits itself to
the first.
Even looking only at the limited issue of whether Plaintiff was denied access during his
RHU placement in July 2014, Defendants’ argument misses the mark. A thorough review of the
docket reveals that Plaintiff filed his opposition brief before his legal materials were confiscated

and before he received notice from the court that he could amend his complaint. See Dow, at
ECF No. 26-1 (envelope mailed from SCI Huntingdon). The docket also reflects that after
Plaintiff was transferred (and was without his legal materials), he sought an extension of time in
which to file an amended complaint7 and he later filed a short “amendment” which was no
amendment at all8. During this time period, Plaintiff’s filings repeatedly complain that he was

7 By motion filed July 10, 2014, Plaintiff sought an extension of time in which to file an amended
complaint explaining that he had recently been transferred to SCI Forest and that he was not
permitted to have his legal papers. Dow, at ECF No. 29. Plaintiff asked that the judge not decide
his case yet and further explained that he had filed the opposition brief in haste because “An
inmate told me that I haded [sic] to do that righ[t] away or the judge was going to dissmiss [sic]
the complaint.” And that he did it quickly before he got the “court order from the judge telling
me that I could amend the complain[t].” Id. Plaintiff stated: “Even though I not know how to
amend it, I can (maybe) find help to amend it. So please give me the time to the twenty-
something of this month. If you not get a beter [sic] amended complaint by then or a beter [sic]
‘Brief in Opposition to motion to dismiss,’ then rule on it for I cannot do nothing beter [SCI] for
myself.” Id. (underlining in original).

8 On August 15, Plaintiff submitted a filing captioned as “Amendments to Original Complaint.”
Dow, at ECF No. 30. The document reads, in its entirety:

Your Honor,

This new prison I am is refusing to give me my legal papers and thus no inmate whom is
willing to help me can help me.

A prisoner here told me to write you and explain this to you. He also told me not to panic
the District Attorney all they do is lie.

This same inmate told me to ask you to make the following amendments to my original
complaint: To erase that all the named Defendants haded [sic] ‘contemperaneious [sic]
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without his legal materials and was at a disadvantage in prosecuting his case. Even later,
following the issuance of a Report and Recommendation recommending that several Defendants
be dismissed due to Plaintiff’s failure to sufficiently allege their personal involvement, Plaintiff
filed Objections again complaining that he did not have his legal materials.9 While Plaintiff
technically “accessed” the courts during this timeframe, he did not have meaningful access to the

courts because he was deprived of his legal documents.
It is up to Plaintiff to prove the elements of his access claim at trial (or in the face of a
motion for summary judgment), but here, his allegations are sufficient to defeat a motion to
dismiss.

F. Destruction of Personal Property
The analysis of a claim stemming for the deprivation of a property interest focuses
on the existence of a post-deprivation remedy. An unauthorized, intentional deprivation of
property by government employees does not violate the Due Process Clause so long as there is a

knowledge’ and to please enter that all of the Defendants haded [sic] ‘Actual knowledge’
were they all knew without a doubt what they were doing.

I was told to explain to you that I do not know how to number the paragraphs for the
changes of words because the CO’s refuse to give me my legal paperwork.

Please rule on the original complaint as filed with the amended change of words, as all
the Defendants did had Actual Knowledge.

Dow, at ECF No. 30.

9 In his Objections, Plaintiff stated that he could not state an argument “because SCI Forest
correctional staff have stolen Plaintiff’s complaint and all related documents in their attempt to
stop me from pursuing this civil action. […] Plaintiff is just attempting [sic] to file this appeal by
reading the Report and Recommendation and by what he can remember of the event that
happened by recollection [sic] of his mind.” Dow, at ECF No. 36.
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“meaningful post-deprivation remedy” available to the plaintiff. Hudson v. Palmer, 468 U.S.
517, 533 (1984). The prison grievance system has been deemed an adequate post-deprivation
remedy. Tillman v. Lebanon County Correctional Facility, 221 F.3d 410, 421 (3d Cir. 2000).
This Court takes judicial notice of the fact that the Pennsylvania Department of
Corrections has a grievance system in place. Because Plaintiff had adequate post-deprivation

remedies available to him to contest the loss of (and damage to) his personal property, his due
process claim fails as a matter of law and should be dismissed.

III. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the motion to dismiss
[ECF No. 59] should be granted in
part and denied in part, as follows:
- Granted as to Overmyer, Mongelluzzo, and Varner based on Plaintiff’s failure
to sufficiently allege their personal involvement in any constitutional
violation. The Clerk should be directed to terminate these three Defendants
from the docket;

- Denied as to the access to courts claim; and
- Granted as to the due process claim based on the loss of and damage to
Plaintiff’s personal property.

In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties must seek
review by the district court by filing Objections to the Report and Recommendation within
fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the
Objections shall have fourteen (14) days from the date of service of the Objections to respond
thereto. See Fed.R.Civ.P. 72(b)(2). Extensions of time will not be granted. Failure to file timely
14
objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187,
193 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).

/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge

Dated: August 14, 2018

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11341998. Public record. Not legal advice.