Petition for Writ of Certiorari — John Tedesco, Petitioner v. Tammy Ferguson, Superintendent, State Correctional Institution at Graterford, et al.

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APPENDIX A

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UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

JOHN TEDESCO,

Plaintiff

CIVIL ACTION NO. 3:17-0997

v

(JUDGE MANNION)

CYNTHIA LINK, et al.,

Defendants

MEMORANDUM

l.

Background

Plaintiff, John Tedesco, an inmate confined in the Retreat States

Correctional Institution, Hunlock Creek, (“SCI-Retreat”), Pennsylvania, filed

the above captioned civil rights action pursuant to 42 U.S.C. $1983. (Doc. 1,

complaint). Prior to service of the complaint, Plaintiff filed a supplemental

complaint. (Doc. 8). The named Defendants are Cynthia Link, SCI-Graterford

Superintendent; Laurel Harry, SCI-Camp Hill Superintendent; and Ms.

Zobitne, SCI-Camp Hill Unit Manager.

Plaintiff alleges that on June 15, 2016, he was transferred from SCIGraterford to SCI-Camp Hill. (Doc. 1, complaint). He states that on June 14,

2016, he packed all of [his] legal work, briefs, discovery, grand jury and

preliminary hearing transcripts, dockets, [and] appeals [he] was working on

for 2 months at Graterford, thousands of pages Of cases...”. Id. He claims that

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“when [he] arrived at Camp Hill all of [his] property was missing.” Id. Plaintiff

states that he was “led to believe that Camp Hill was in touch with Graterford

and that they were working on a solution to getting [Plaintiffs] legal property

back”, while “all along [Plaintiff’s] appeals were due on his direct appeal.”

(Doc. 8, supplement). Plaintiff claims that “if s now been 15 months and the

Department of Corrections still has not provided [him] with any of his legal

property during the most important time of the appeals process.” [d.

Plaintiff filed the instant action, claiming that his First, Fourth, Eighth and

Fourteenth Amendments have been violated. ]d. For relief, Plaintiff seeks

compensatory damages for “being denied [his] constitutional rights of access

. to courts,” and “also be recompensated (sic) for the gross negligence and

reimbursement for the thousands of dollars to obtain [his] legal work and

papers caused by the Department of Corrections.” (Doc. 1, complaint).

Plaintiff also seeks “the court to overturn [his] and [his] wife’s appeals that

[Plaintiff] was working on and convictions [they] had no chance because of

[their] indolent and ill prepared attorneys not to bring up any issues of merit,

not to mention all of the trial and pre-trial errors that were brought on by the

district attorney’s office of Monroe County that our court ‘appointed attorneys’

would never bring up on appeal.” Id.

The parties have filed cross-motions for summary judgment. The

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motions are fully briefed and are ripe for disposition. For the reasons that

follow, the Defendant’s motion will be GRANTED and the Plaintiff’s motions

will be DENIED.

II.

Standard of Review

Pursuant to Federal Rule of Civil Procedure 56(a) “[t]he court shall grant

summary judgment if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.”

Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). “[Tjhis standard provides that the mere existence of some alleged

factual dispute between the parties will not defeat an otherwise properly

supported motion for summary judgment; the requirement is that there be no

genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

247-48 (1986).

A disputed fact is “material” if proof of its existence or nonexistence

would affect the outcome of the case under applicable substantive law.

Anderson, 477 U.S. at 248; Gray v. York Newspapers, Inc., 957 F.2d 1070,

1078 (3d Cir. 1992). An issue of material fact is “genuine” if the evidence is

such that a reasonable jury could return a verdict for the nonmoving party.

Anderson, 477 U.S. at 257; Brenner v. Local 514, United Brotherhood of

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Carpenters and Joiners of America, 927 F.2d 1283, 1287-88 (3d Cir. 1991).

When determining whether there is a genuine issue of material fact, the

court must view the facts and all reasonable inferences in favor of the

nonmoving party. Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v.

Consolidated Rail Corporation. 963 F.2d 599, 600 (3d Cir. 1992); White v.

Westinqhouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988). In order to

avoid summary judgment, however, parties may not rely on unsubstantiated

allegations. Parties seeking to establish that a fact is or is not genuinely

disputed must support such an assertion by “citing to particular parts of

materials in the record,” by showing that an adverse party’s factual assertion

lacks support from cited materials, or demonstrating that a factual assertion

is unsupportable by admissible evidence. Fed.R.Civ.P. 56(c)(1); see Celotex,

477 U.S. at 324 (requiring evidentiary support for factual assertions made in

response to summary judgment). The party opposing the motion “must do

more than simply show that there is some metaphysical doubt as to the

material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574

586 (1986). Parties must produce evidence to show the existence of every

element essential to its case that they bear the burden of proving at trial, for

“a complete failure of proof concerning an essential element of the nonmoving

party’s case necessarily renders all other facts immaterial.” Celotex, 477 U ,S.

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at 323; see Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992). Failure

to properly support or contest an assertion of fact may result in the fact being

considered undisputed for the purpose of the motion, although a court may

also give parties an opportunity to properly provide support or opposition.

-ed.R.Civ.P. 56(e).

111.

Statement of Undisputed Facts

On August 14, 2015, following a jury trial in Monroe County,

Pennsylvania, Plaintiff was convicted of the following offenses under docket

number CP-45-CR0002228-2013: murder of the third degree, neglect of a

care-dependent person, theft by unlawful taking, theft by failing to make

required disposition of funds received, and tampering with/fabricating physical

evidence. (Doc. 58-2 at 2 - 34, Criminal Docket Sheet). Plaintiff was also

convicted of conspiracy to commit each of these crimes, with*the exception

of tampering with physical evidence, id. Plaintiff was tried, convicted, and

sentenced along with his wife, Tina Tedesco. (Doc. 58-3 at 3, Pennsylvania

Superior court Memorandum Opinion dated February 12, 2017). On October

26, 2015, the trial court sentenced Tedesco to an aggregate term of

incarceration of not less than 183 months and not more than 366 months. Id.

Fie and his wife were convicted of the same crimes and received identical

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sentences. Id.

Attorney Robert Saurman entered an appearance in Plaintiff’s criminal

case on August 10, 2015, and represented him at trial. (Doc. 58-2 at 2 - 34,

Criminal Docket Sheet). Attorney Saurman filed post-trial motions on behalf

of the Plaintiff on November 5, 2015. Id. He then filed a notice of Appeal to

the Superior Court of Pennsylvania on March 8, 2016. [d. The appeal was

docketed at 787 EDA 2016. Id. The Superior Court denied Plaintiff’s appeal

and affirmed his sentence on February 13, 2017. (Doc. 58-3 at 2,

Pennsylvania Superior court Memorandum Opinion dated February 12,2017).

On March 20, 2017, Attorney Saurman filed a Petition for Allowance of

Appeal to the Supreme Court of Pennsylvania. (Doc. 58-2 at 2 - 34, Criminal

Docket Sheet). That Petition, docketed at 159 MAL 2017, was denied on

September 19, 2017. (Doc. 58-4 at 2, Order). The Plaintiff subsequently filed

a pro se Petition for Writ of Certiorari with the United States Supreme Court.

See Tedesco v. Pennsylvania, 138 S.Ct. 1703 (2018). That Petition was

denied on April 30, 2018. Id. Plaintiff’s Petition for Rehearing was denied on

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July 16, 2018. See Tedesco v. Pennsylvania, 138 S.Ct. 2713 (2018).

On December 28, 2016, Attorney Saurman wrote a letter to Plaintiff,

offering to assist him by either petitioning the court to authorize the expense

of making additional copies of the missing legal paperwork, or to send

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everything to the Plaintiff in an electronic format. (Doc. 58-5 at 2, Letter).

Additionally, in his letter, Attorney Saurman informed Plaintiff that the time for

filing a petition for relief under Pennsylvania’s Post Conviction Relief Act

(“PCRA”) would start to run at the conclusion of any possible appeals. Id.

Plaintiff apparently did not take advantage of Attorney Saurman’s offer to

assist in securing copies of Plaintiffs legal paperwork, but instead contacted

the Monroe County Court on his own, to no avail. (Doc. 58-1 at 7, Tedesco

Deposition at 21:17-23).

On February 26, 2019, Tedesco filed a petition for relief under

Pennsylvania’s Post Conviction Relief Act (“PCRA”). See Commonwealth of

Pennsylvania v. John Michael Tedesco, CP-45-CR-0002228-2013. By Order

dated February 28, 2019, Donald Gual, Esq., was appointed as counsel and

granted leave to file an amended complaint. Id. On March 11,2019, Attorney

Gual filed a motion to vacate appointment as conflict counsel, which was

granted on March 14, 2019 and Attorney Janet Catina was appointed. Id.

Tedesco’s PCRA remains currently pending.

*

The parties do not dispute that Tedesco was transferred on June 15,

2016 from SCI-Graterford to SCI-Camp Hill, and that his legal property never

arrived at SCI-Camp Hill. It is also undisputed the none of the named

Defendants personally packed, inventoried or transported Plaintiff’s property.

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Finally, there is no dispute as to whether Plaintiff exhausted administrative

remedies with respect to the missing property.

IV.

Discussion

A. Personal Involvement

In order to state a viable section 1983 claim, a plaintiff must plead two

essential elements: (1) that the conduct complained of was committed by a

person acting under color of state law, and (2) that said conduct deprived the

plaintiff of a right, privilege, or immunity secured by the Constitution or laws

of the United States. Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir.

1995): Shaw by Strain v. Strackhouse, 920 F.2d 1135, 1141-42 (3d Cir.

1990). “To establish liability for deprivation of a constitutional right under

§1983, a party must show personal involvement by each defendant.” Ashcroft

v. Iqbal, 556 U.S. 662, 676-77 (2009) (“Because vicarious liability is

inapplicable to Bivens and §1983 suits, a plaintiff must plead that each

Government-official defendant, through the official’s own individual actions,

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has violated the Constitution.”); see Santiago v. Warminster Twp., 629 F.3d

121. 130 (3d Cir. 2010).

Moreover, it is well established that personal liability in a civil rights

action cannot be imposed upon a state official based on a theory of

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respondeat superior. See, e.g., Rizzo v. Goode, 423 U.S. 362 (1976). It is

also well-settled in the Third Circuit that personal involvement of defendants

in alleged constitutional deprivations is a requirement in a civil rights case and

that a complaint must allege such personal involvement. Sutton v. Rasheed,

323 F.3d 236. 249-250 (3d Cir. 2003). Each named defendant must be

shown, through the complaint’s allegations, to have been personally involved

in the events or occurrences upon which Plaintiffs claims are based. |d. As

the Court stated in Rode v. Dellarciprete, 845 F.2d 1195,1207 (3d Cir. 1998):

A defendant in a civil rights action must have personal

involvement in the alleged wrongs.... [(Docs. 2, 7) P]ersonal

involvement can be shown through allegations of personal

direction or of actual knowledge and acquiescence. Allegations of

participation or actual knowledge and acquiescence, however,

must be made with appropriate particularity. (Citations omitted).

Aside from naming SCI-Graterford Warden Link and SCI-Camp Hill

Superintendent Harry, in the caption of the complaint, there are no allegations

in the body of the complaint against these Defendants. There is no evidence

of record that these Defendants were personally involved in any of the alleged

incidents of constitutional deprivatioh. Thus, it is apparent that Plaintiff is

attempting to impose liability on Warden Link and Warden Harry on the basis

of respondeat superior. As such, Defendants, Warden Link and Warden Harry

are entitled to dismissal.

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Moreover, aside from Plaintiff alleging in his complaint that he filed a

grievance with Defendant, Unit Manager Zobitne regarding the missing

property, after he realized it was missing, Plaintiff fails to allege that

Defendant Zobitne was personally involved in any deprivation of his rights

under the Constitution or any other law of the United States. A prison official’s

participation in grievance processes, including appeals, fails to establish the

requisite personal involvement.” Brooks v. Beard, 167 Fed.Appx. 923,925 (3d

Cir. 2006) (“Although the complaint alleges that [prison officials] responded

inappropriately to [the plaintiff’s] later-filed grievances about his medical

treatment, these allegations do not establish [the prison officials’] involvement

in the treatment itself.”). Thus, Defendant Zobitne is entitled to dismissal.

B. Access to the Courts Claim

In Bounds v. Smith, 430 U.S. 817 (1977), the United States Supreme

Court held “that the fundamental constitutional right of access to the courts

requires prison authorities to assist inmates in the preparation and filing of

meaningful legal papers by providing prisoners with adequate law libraries or

adequate assistance from persons trained in the law.” Id. at 828.

However, in Lewis v. Casey, 518 U.S. 343 (1996). the Supreme Court

effectively repudiated much of its prior holding in Bounds. In Lewis, the

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Supreme Court held that Bounds did not recognize an independent right in

prisoners to have an adequate law library; instead, it concerned the

established right of access to the courts. Lewis, 518 U.S. at 351. Thus, the

Lewis Court held that, in order to successfully challenge a denial of this right

of access to the courts, it is not enough for an inmate to establish that the law

library provided was inadequate or he was denied access either to the law

library or to legal materials; rather, he must establish that such inadequacies

in the library or in accessing legal materials caused him actual harm.

Because Bounds did not create an abstract freestanding right to

a law library or legal assistance, an inmate cannot establish

relevant actual injury simply by establishing that his prison’s law

library or legal assistance program is subpar in some theoretical

sense. That would be the precise analog of the healthy inmate

claiming constitutional violation because of the inadequacy of the

prison infirmary [which claim would be rejected due to such

healthy inmate lacking an actual injury so as to confer standing to

bring suit]. Insofar as the right vindicated by Bounds is concerned,

“meaningful access to the courts is the touchstone,” [Bounds 430

U.S.] at 823 (internal quotation marks omitted) and the inmate

must go one step further and demonstrate that the alleged

shortcomings in the library or legal assistance hindered his efforts

to pursue a legal claim. He might show, for example, that a

complaint he prepared was dismissed for failure to satisfy some

technical requirement which, because of deficiencies in the

prison's legal assistance facilities, he could not have known. Or

that he suffered arguably actionable harm that he wished to bring

before the courts, but was so stymied by inadequacies of the law

library that he was unable to even file a complaint.

Lewis, 518 U.S. at 351.

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4 19Moreover, Lewis requires that an inmate seeking to prove denial of

access to courts prove that the claim that he was denied bringing was

nonfrivolous. See Lewis, 518 U.S. at 353 n. 3. Such a requirement is simply

a functional result of requiring an “actual injury.” If an inmate is denied access

to courts to bring a frivolous suit, he has simply not been injured, i.e., he has

suffered no prejudice. See id. (“Depriving someone of an arguable (though not

yet established) claim inflicts actual injury because it deprives him of

something of value-arguable claims are settled, bought and sold. Depriving

someone of a frivolous claim, on the other hand, deprives him of nothing at

all....”).

In Christopher v. Harbury, 536 U.S. 403 (2002), the Supreme Court set

forth specific criteria that a court must consider in determining whether a

plaintiff has alleged a viable claim of right to access to the courts. Specifically,

the Supreme Court held that, in order to state a claim for denial of access to

courts, a party must identify all of the following in the complaint: 1) a

non-frivolous, underlying claim: 2) the official acts frustrating the litigation; and

3) a remedy that may be awarded as recompense but that is not otherwise

available in a future suit. Christopher, 536 U.S. at 415.

The Court explained that the first requirement mandated that the plaintiff

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specifically state in the complaint the underlying claim in accordance with the

requirements of Rule 8(a) of the Federal Rules of Civil Procedure to the same

degree as if the underlying claim was being pursued independently.

Christopher, 536 U.S. at417. In this regard, the statement must be sufficiently

specific to ensure that the district court can ascertain that the claim is not

frivolous and that the “the ‘arguable’ nature of the underlying claim is more

than hope.” Id The second requirement requires a Plaintiff to clearly allege

in the Complaint the official acts that frustrated the underlying litigation. Third,

a Plaintiff must specifically identify a remedy that may be awarded as

recompense in a denial-of-access case that would not be available in any

other future litigation. ” Id. at 414.

The record before this Court reveals that Plaintiff has pursued his direct

appeal remedies all the way to the United States Supreme Court. Additionally,

Plaintiff has timely pursued state court collateral remedies, with the filing of

his PCRA petition, which is currently pending before the state courts. There

is absolutely no evidence of record to establish that Tedesco was unable to

communicate with a lawyer or the courts, or that he has suffered any injury or

loss in the form of access to the courts. He has not established that he has

missed a deadline, was precluded from advancing an arguably meritorious

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claim or motion, or was otherwise injured. While Plaintiff asserts that the loss

of his paperwork somehow hampered his ability to pursue his appeals, the

record evidence proves otherwise. As such, the Plaintiff does not have an

injury, and is prevented from summary judgment.

Moreover, to the extent that Plaintiff requests compensation for illegal

confinement, it is well-settled that prisoners cannot use §1983 to challenge

the fact or duration of their confinement or to seek immediate or speedier

release. Preiser v. Rodriquez, 411 U.S. 475 (1973). The United States

Supreme Court ruled that a constitutional cause of action for damages does

not accrue “for allegedly unconstitutional conviction or imprisonment, or for

other harm caused by actions whose unlawfulness would render a conviction

or sentence invalid,” until the plaintiff proves that the “conviction or sentence

has been reversed on direct appeal, expunged by executive order, declared

invalid by a state tribunal authorized to make such determination, or called

into question by a federal court's issuance of a writ of habeas corpus.” Heck

v. Humphrey, 512 U.S. 477 (19941. “Th,e complaint must be dismissed unless

the plaintiff can demonstrate that the conviction or sentence has already been

invalidated.” Id.

Because there is no indication of record that there has been a

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successful prior adjudication pertaining to Plaintiffs alleged unlawful

sentence, it is appropriate to dismiss the claim for damages as legally

fivolous. Plaintiff cannot, under Heck, maintain a cause of unlawful

imprisonment until the basis for that imprisonment is rendered invalid. See

also Gilles v. Davis, 427 F.3d 197, 210 (3d Cir. 2005) (holding that the

favorable termination rule of Heck, under which a state inmate must secure

a determination of invalidity of his conviction or sentence before seeking

§1983 damages for unconstitutional conviction or confinement, applies to

suits by prisoners who no longer are in custody, even though federal habeas

relief no longer is available due to the prisoner’s release); Mitchell v.

Department of Corrections, 272 F. Supp. 2d 464, 473 (M.D. Pa. 2003).

C. Deprivation of Property

To the extent that Plaintiff is alleging a Fourteenth Amendment

deprivation of property without due process claim, his claim is not actionable

under 42 U.S.C. §1983. See Coulson v. Mooney, 2015 WL 1034632 (M.D.

Pa. 2015) (dismissing the complaint op screening because the plaintiff had an

adequate post-deprivation remedy to address his claim that his cellmate

deliberately destroyed his television and other personal property). The

Supreme Court of the United States has held that neither negligent nor

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intentional deprivations of property violate the Due Process Clause if there is

a meaningful post-deprivation remedy for the loss. See Hudson v. Palmer

468 U.S. 517 (1984); Parratt v. Taylor, 451 U.S. 527, 530 (1981). The Third

Circuit Court of Appeals has “held that the prison’s grievance program and

internal review provide an adequate post-deprivation remedy to satisfy due

process.” Barr v. Knaueer, 321 Fed. Appx 101, 103 (3d Cir. 2009) (citing

Tillman v. Lebanon County Correctional Facility, 221 F.3d 410, 422 (3d Cir.

2000). See also Griffin-El v. Beard, 2010 WL 1837813 (E.D. Pa. 2010)

(concluding that a “prisoner’s ‘failure to [properly] avail himself of such remedy

does not affect its adequacy as a post-deprivation remedy’”). Additionally, “the

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

grievance is not a federal constitutional violation.” Gordon v. Vaughn, 1999

WL 305240 (E.D. Pa. May 12,1999) (citing Adams v. Rice, 40 F.3d 72, 74 (4th

Cir. 1994), cert, denied, 514 U.S. 1022 (1995V

Moreover, Plaintiff has another post-deprivation remedy, namely a state

conversion action. See Crosby v. Piazza, 2012 WL 641938 (3d. Cir. 2012)

(holding that to the extent an inmate “is dissatisfied with the outcome of the

administrative process, he may still file a state court tort action”); Reavis v.

Poska, 2010 WL 2511379 (W.D. Pa. 2010] (“Plaintiff, cannot as a matter of

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aw, make a claim under the Fourteenth Amendment for a deprivation of

property without due process” because the DOC’s “internal grievance

procedure and the availability of a state tort suit in state court provide

adequate post deprivation remedies.”); 42 Pa.C.S.A. §8522(a), (b)(3).

Plaintiff admits to filing grievances regarding his lost property, and

therefore, has participated in a meaningful post-deprivation grievance

procedure. As discussed, if a meaningful post-deprivation grievance

procedure is available, regardless of whether the result of this grievance

procedure is favorable to the plaintiff, the plaintiff will not have a claim for a

violation of the Due Process Clause of the Fourteenth Amendment. Therefore,

in accordance with the aforementioned precedential case law, Plaintiff has

failed to allege a Fourteenth Amendment violation of the Due Process Clause.

To the extent that Plaintiff claims that the loss of his legal paperwork

constitutes cruel and unusual punishment under the Eighth Amendment to the

United States Constitution, his claim is without merit.

The Eighth Amendment’s prohibition of cruel and unusual punishment

does not only restrain affirmative conduct, such as the use of excessive force

against prisoners. See, e.q., Hudson v. McMillian, 503 U.S. 1,5 (1992). It also

imposes a duty on prison officials to provide humane conditions of

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confinement and to “take reasonable measures to guarantee the safety of the

nmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). “A prison official's

deliberate indifference’ to a substantial risk of serious harm to an inmate

violates the Eighth Amendment.” Id. at 828. A substantial risk of serious harm

“may be established by much less than proof of a reign of violence and terror,”

Dut requires more than a single incident or isolated incidents. See Riley v.

Jeffes, 777 F.2d 143. 147 (3d Cir.1985). To determine whether officials

operated with deliberate indifference,

courts question whether they

consciously knew of and disregarded an excessive risk to the prisoner’s well

being. Farmer, 511 U.S. at 840-44. Not only must a prison official be “aware

of facts from which the inference could be drawn that a substantial risk of

serious harm exists,” but the official “must also draw the inference.” Farmer

511 U.S. at 837. “[A] prison official is deliberately indifferent when he knows

or should have known of a sufficiently serious danger to an inmate.” Young

v. Quinlan, 960 F.2d 351, 361 (3d Cir. 1992) (emphasis in original).

While the loss of one’s legal paperwork is frustrating and unfortunate,

it does not rise to the level of cruel and unusual punishment, so as to deprive

the Plaintiff of the “minimal civilized measure of life’s necessities.” As such,

he is not entitled to summary judgment.

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D. Fourth Amendment Claim

To the extent that Plaintiff attempts to argue that the seizure of his

property at SCI-Graterford, for transfer to SCI-Camp Hill was unreasonable

and in violation of his constitutional rights, this claim is meritless as a matter

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of law, as prisoners do not have legitimate expectations of privacy in their

cells giving rise to a Fourth Amendment claim against unreasonable searches

and seizures. See Hudson v. Palmer, 468 U.S. 517, 525-26 (1984); United

States v. Donahue. 764 F.3d 293, 299 (3d Cir. 2014).

E. Retaliation Claim

In his motion for summary judgment, Plaintiff raises, for the first time, a

retaliation claim. (Doc. 54, brief in support). Specifically, Plaintiff states that

he has “proven through documentation as well as witnesses statements that

the Department of Corrections for the state of Pennsylvania, S.C.I. Camp Hill,

♦

and S.C.I. Graterford lost of all Plaintiffs legal documents/materials/appeals

any and all of his legal work, documents, papers dating back to 2011, in some

type of retaliation for his voiced concerns over his illegal conviction and for

having documents to back up his illegal conviction...” [d. Additionally, Plaintiff

claims that he “could of been retaliated against for having documents that

some how were mixed in with his discovery in regards to a missing persons

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case, where Plaintiff, after contacting the Attorney Generals Office in

Scranton was visited by State Police Detective Sebastianelly, and turned the

documents over to the guards at Graterford, it is not Plaintiffs fault that the

missing persons documents got mixed in with his more than likely from the

Monroe County District Attorneys Negligent Acts, regardless Plaintiff has

established a prima facie case for retaliation, the burden shifts to the

Defendants.” Id.

The First Amendment offers protection for a wide variety of expressive

activities. See U.S. Const, amend I. These rights are lessened, but not

extinguished in the prison context, where legitimate penological interests must

be considered in assessing the constitutionality of official conduct. See Turner

v. Saflev, 482 U.S. 78, 89 (1987). Retaliation for expressive activities can

infringe upon an individual’s rights under the First Amendment. See Allah v.

• **

Seiverlinq, 229 F.3d 220, 224-25 (3d Cir. 2000). To prevail on a retaliation

claim under 42 U.S.C. $1983, plaintiff must demonstrate (1) that he was

engaged in constitutionally protected conduct; (2) that he suffered an

“adverse action” by prison officials ‘sufficient to deter a person of ordinary

firmness from exercising his constitutional rights"; and (3) that there is “a

causal link between the exercise of his constitutional rights and the adverse

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action taken against him.” Mitchell v. Horn, 318 F.3d 523. 530 (3d Cir. 2003)

(quoting Allah, 229 F.3d at 225). If a prisoner sufficiently establishes a causal

connection, prison officials may overcome this element by demonstrating that

the same action would have been taken in the absence of the protected

activity-” Rauserv. Horn, 241 F.3d 330. 333-334 (3d Cir.2Q01V

Plaintiff’s claim fails to meet any of the requirements of a retaliation

claim. However, even assuming, without deciding, that voicing one’s opinion

about the illegality of one’s own conviction is constitutionally protected

conduct, Plaintiff suffered no “adverse action” by Defendants. There is no

record evidence that Plaintiff was ever disciplined in any way, shape, or form

when it came to the issue of his missing paperwork. Moreover, Plaintiff,

cannot meet the causal link between the exercise of a constitutional right and

adverse action taken against him, as, he himself stated in his complaint, that

he “do[es] not have a clue who lost or misplaced my legal work documents

Graterford or Camp Hill.” (See Doc. 1 at 8). Without being able to identify who

did so, and/or with what intent, it is simply impossible to make a causal

connection between the protected conduct and any theoretical adverse action

Plaintiff suffered. Defendants, are entitled'to summary judgment.

F. Preliminary Injunction

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Plaintiff" requests that a preliminary injunction be granted in his favor so

he can retain his legal documents and any other relief this Honorable Court

deems appropriate, as well as addressing the constitutional violations that

took place against the Plaintiff in the immediate future.” (See Doc. 75 at 4).

Preliminary injunctive relief is extraordinary in nature and should issue

in only limited circumstances. See American Tel, and Tel. Co. V. Winback and

Conserve Program, Inc., 42 F.3d 1421. 1426-27 (3d Cir. 1994). cert, denied.

514 US. 1103 (1995). Moreover, issuance of such relief is at the discretion of

the trial judge. Orson, Inc, v. Miramax Film, Coro., 836 F. Supp. 309, 311

(E.D.Pa. 1993). In determining whether to grant a motion seeking preliminary

injunctive relief, courts in the Third Circuit consider the following four factors:

(1)

(2)

(3)

(4)

likelihood of success on the merits;

irreparable harm resulting from a denial of relief;

the harm to the non-moving party if relief is granted;

and

the public interest.

United States v. Bell, Civ. No. 1 :CV-01-2159, 2003 WL 102610, *2 (M.D. Pa.

January 10,2003)(J. Conner)(internal citations omitted). It is the moving party

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that bears the burden of satisfying these factors, jd. The standards for a

temporary restraining order are the same as those for a preliminary injunction.

i -

Bieros v. Nicola, 857 F. Supp. 445, 446 (E.D. Pa. 1994).

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Perhaps the most important prerequisite for the issuance of a

preliminary injunction is a demonstration that if it is not granted, the applicant

is likely to suffer irreparable harm before a decision on the merits can be

rendered. See Continental Group, Inc, v. Amoco Chems. Coro., 614 F.2d 351.

356 (3d Cir. 1980). Irreparable injury is "potential harm which cannot be

redressed by a legal or equitable remedy following a trial." Instant Air Freight,

882 F.2d at 801. A court may not grant preliminary injunctive relief unless

"[t]he preliminary injunction [is] the only way of protecting the plaintiff from

harm." Jc[. The relevant inquiry is whether the party moving for the injunctive

relief is in danger of suffering the irreparable harm at the time the preliminary

injunctive relief is to be issued. Id. Speculative injury does not constitute a

showing of irreparable harm. Continental, 614 F.2d at 359; see also Public

Serv. Co. v. West Newbury, 835 F.2d 380, 383 (1 st Cir. 1987). “The possibility

that adequate compensatory or other corrective relief will be available at a

later date, in the ordinary course of litigation, weighs heavily against a claim

of irreparable harm.” Instant Air Freight, 882 F.2d at 801 (quoting Sampson

v. Murray, 415 U.S. 61, 90 (1964)). Of course, a prisoner lacks standing to

seek injunctive relief if he is no longer subject to the alleged conditions he

attempts to challenge. See Weaver v. Wilcox, 650 F. 2d 22, 27 n. 13 (3d Cir.

23

u

4

1981)(prisoner’s transfer from the prison moots claim for injunctive and

declaratory relief with respect to prison conditions, but not claims for

damages.)

Based on Plaintiffs failure to prevail on the merits of the instant civil

rights action, Plaintiffs motion for injunctive relief (Doc. 74) will be denied.

V.

Conclusion

Based upon the undisputed facts of record, Plaintiffs motion for

summary judgment will be denied, and Defendants motion for summary

judgment on all claims will be granted. An appropriate order shall issue.

s/ ^tcdacAcf, S- ’TticuwccM

MALACHY E. MANNION

United States District Judge

Dated:

March 28, 2019

17-0997-01.wpd

24

M

APPENDIX B

8i

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

JOHN TEDESCO,

Plaintiff

CIVIL ACTION NO. 3:17-0997

v

(JUDGE MANNION)

CYNTHIA LINK, et a!.,

Defendants

ORDER

For the reasons set forth in the Memorandum of this date, IT IS

HEREBY ORDERED THAT:

1.

Defendants’ motion for summary judgment,

GRANTED.

2.

Plaintiffs motion for partial summary judgment (Doc. 27) and

motion for summary judgment (Doc. 50) are DENIED.

3.

The Clerk of Court is directed to enter judgment in favor of the

Defendant on all claims and against the Plaintiff.

4.

Plaintiffs motion for reconsideration of this Court’s April 25, 2018

Order deeming Plaintiff’s first motion for partial summary

judgment withdraw for failure to file a supporting brief (Doc. 25) is

DENIED

'

5.

Plaintiff’s motions to strike Defendants’ affirmative defenses (Doc.

26, 32) are DENIED.

6.

Plaintiff’s motion for post deprivation hearing is (Doc. 34) is

DISMISSED, without prejudice to filing for a post deprivation

hearing in accordance with the memorandum of this date.

(Doc.

62) is

7.

Plaintiffs motion for protective order (Doc. 37), motion for leave

of court to send interrogatories (Doc. 55), motions to compel

discovery (Doc. 56, 71), motion to strike Defendants’ brief in

opposition to Plaintiffs motion for summary judgment, (Doc. 60),

motion for court to sanction Defendant (Doc. 72), motion to admit

requests for admissions (Doc. 77), and motion to strike reply brief

(Doc. 84). are DENIED.

8.

Defendants’ motion to strike Plaintiff’s motion for partial summary

judgment (Doc. 42), is DISMISSED as moot.

9.

Plaintiffs’ motions for injunctive relief (Doc. 74, 87) are DENIED.

10.

Plaintiff’s motions for appointment of counsel (Doc. 86, 89) are

DISMISSED as moot.

11.

The Clerk of Court is directed to CLOSE this case.

12.

Any appeal taken from this order will be deemed frivolous, without

probable cause, and not taken in good faith. See 28 U.S.C.

51915(a)(3).

s/ TKatacJup S■ 'THcumim

MALACHY E. MANNION

United States District Judge

Dated:

March 28, 2019

17-0997-01-ORDER.wpd

2

Jl

•

& &

7.

Plaintiffs motion for protective order (Doc. 37), motion for leave

of court to send interrogatories (Doc. 55), motions to compel

discovery (Doc. 56, 71), motion to strike Defendants’ brief in

opposition to Plaintiffs motion for summary judgment, (Doc. 60),

motion for court to sanction Defendant (Doc. 72), motion to admit

requests for admissions (Doc. 77), and motion to strike reply brief

(Doc. 84), are DENIED.

8.

Defendants’ motion to strike Plaintiff’s motion for partial summary

judgment (Doc. 42), is DISMISSED as moot.

9.

Plaintiffs’ motions for injunctive relief (Doc. 74, 87) are DENIED.

10.

Plaintiff’s motions for appointment of counsel (Doc. 86, 89) are

DISMISSED as moot.

11.

The Clerk of Court is directed to CLOSE this case.

12.

Any appeal taken from this order will be deemed frivolous, without

probable cause, and not taken in good faith. See 28 U.S.C.

51915(a)(3).

V*

s/

£. TftauauM.

MALACHY E. MANNION

United States District Judge

Dated:

March 28, 2019

17-0997-01-ORDER.wpd

2

. *s

APPENDIX C

C{

BLD-060

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 19-1813

JOHN TEDESCO,

Appellant

v.

SUPERINTENDENT GRATERFORD SCI;

SUPERINTENDENT CAMP HILL SCI; and

MS. ZOBITNE, SCI Camp Hill

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civ. No. 3:17-cv-00997)

District Judge: Honorable Malachy E. Mannion

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2), or for

Possible Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6

December 5, 2019

Before: AMBRO, GREENAWAY, JR. and BIBAS, Circuit Judges

JUDGMENT

This cause came to be considered on the record from the United States District

Court for the Middle District of Pennsylvania and was submitted for possible dismissal

pursuant to 28 U.S.C. § 1915(e)(2) or summary action pursuant to Third Circuit LAR

27.4 and I.O.P. 10.6 on December 5, 2019. On consideration whereof, it is now hereby

ORDERED and ADJUDGED by this Court that the judgment of the District Court

entered March 28, 2019, be and the same hereby is affirmed. All of the above in

accordance with the opinion of this Court.

C$~r

ATTEST:

s/ Patricia S. Dodszuweit

Clerk

Dated: January 7, 2020

c

a

'1

fWM

, D X?

:* 7**•

% * -y

Certifled^itjfc

y*^&d issued in lieu

.* c.

'T

February 10, 2020

of a foriii?il mandate

uo*’ ^

Teste:

Clerk, U.S. Court of Appeals for the Third Circuit

i

APPENDIX D

DI

NOT PRECEDENTIAL

BLD-060

UNITED STATES COURT OF APPEALS

FOR THE TPIIRD CIRCUIT

No. 19-1813

JOFIN TEDESCO,

Appellant

v.

SUPERINTENDENT GRATERFORD SCI;

SUPERINTENDENT CAMP HILL SCI; and

MS. ZOBITNE, SCI Camp Hill

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civ. No. 3:17-cv-00997)

District Judge: Honorable Malachy E. Mannion

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2), or for

Possible Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6

December 5, 2019

Before: AMBRO, GREENAWAY, JR. and BIB AS, Circuit Judges

(Opinion filed: January 7, 2020)

OPINION*

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not__

constitute binding precedent.

6 9PER CURIAM

Pennsylvania inmate John Tedesco was transferred from SCI-Graterford to SCICamp Hill, but his case files and other legal materials were not waiting for him on arrival.

Without those materials, Tedesco’s ability to litigate his criminal case allegedly was

stymied. After availing himself of the administrative inmate grievance system and

finding no success, Tedesco sued three prison officials—SCI-Graterford Warden Cynthia

Link, SCI-Camp Hill Superintendent Laurel Harry, and Unit Manager Renee Zobitne

(“Defendants”)—for civil rights violations under 42 U.S.C. § 1983.

The District Court denied Tedesco’s motion for preliminary injunctive relief and

granted Defendants’ motion for summary judgment, concluding that none of them was

personally involved in any alleged deprivation of constitutional rights. The District Court

also concluded that Tedesco: (1) has no viable access to Courts claim because he failed to

adduce evidence of a cognizable injury; (2) is barred from maintaining a cause of action

for unlawful imprisonment at this time; (3) has no viable due process claim for

deprivation of property because adequate post-deprivation remedies were available; (4)

has no viable Eighth Amendment claim because the loss of legal materials, while

“frustrating and unfortunate,” is not cruel and unusual punishment; (5) has no viable

Fourth Amendment claim because “prisoners do not have legitimate expectations of

privacy in their cells”; and (6) has no viable First Amendment retaliation claim because

his proclamations of innocence were not linked to any “adverse action.”

2

&3

Tedesco appealed. He also filed a motion for reconsideration of the summary

judgment ruling, and a “motion for equitable tolling” of AEDPA’s statute of limitations.

The District Court denied both motions. Tedesco then filed an amended notice of appeal.

We have jurisdiction under 28 U.S.C. § 1291. Our review of an order granting

summary judgment is de novo. Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009).

Relevant evidence of record is viewed in the light most favorable to Tedesco as the non­

movant. Miller v. Am. Airlines, Inc., 632 F.3d 837, 844 (3d Cir. 2011). Our review of an

order denying reconsideration is for abuse of discretion. Barbato v. Grevstone Alliance.

LLC, 916 F.3d 260, 264 (3d Cir. 2019).

For substantially the reasons given in the District Court’s summary judgment

opinion, we will affirm. See 3d Cir. L.A.R. 27.4 (2011); 3d Cir. I.O.P. 10.6 (2018). In

particular, we agree with the District Court that Tedesco adduced no evidence that

Defendants were personally involved, as a matter of law, in any alleged constitutional

violations. See ECF 65-2 at 2-3 (Link declaration); ECF 65-3 at 2-3 (Harry declaration);

ECF 65-4 at 2-3 (Zobitne declaration); cf Thomas v. Tice, No. 18-1811,

F.3d

2019 WL 5884162, at *2 (3d Cir. Nov. 12, 2019) (discussing personal-involvement

liability standard).1 Tedesco’s motion for appointment of counsel is dismissed as moot.

1 Tedesco’s scattershot arguments on appeal—for example, that the inmate grievance

process is illegitimate, that the loss of legal materials not only formed the factual basis of

Tedesco’s claims below but also impeded his ability to actually litigate those same

claims, and that he was retaliated against by the Pennsylvania State Police (among

others)—are either baseless or irrelevant to the orders on appeal.

3

W?

*.

APPENDIX E

gt

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

19-1813

JOHN TEDESCO,

Appellant

v.

SUPERINTENDENT GRATERFORD SCI;

SUPERINTENDENT GAMP HILL SCI; and

MS. ZOBITNE, SCI Camp Hill

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civ. No. 3:17-cv-00997)

District Judge: Honorable Malachy E. Mannion

Before: SMITH, Chief Judge, McKEE, AMBRO, CHAGARES, JORDAN,

HARDIMAN, GREENAWAY, Jr., SHWARTZ,-KRAUSE, RESTREPO,

BIBAS, PORTER, MATEY and PHIPPS, Circuit Judges

SlIR PETITION FOR REHEARING

The petition for rehearing filed by Appellant in the above-entitled case having

been submitted to the judges who participated in the decision of this Court and to all the

other ayailable circuit judges of the circuit in regular active service, and no judge who

concurred in the decision having asked for rehearing and a majority of the judges of the

circuit in regular service not having voted for rehearing, the petition for rehearing by the

panel and the Court en banc, is denied.

By the Court,

s/ Thomas L. Ambro. Circuit Judge

Dated: January 31, 2020.

Lmr/cc: John Tedesco

Michael J. Scarinci

Additional material

from this filing is

available in the

Clerk's Office.