relevant documents throughout the litigation then "plaintiff [the criminal defendant] has suffered no deprivation to his constitutional rights." Gay v. Watkins, 573 F. Supp. 706, 707 (E.D.Pa. 1983). In addition, a criminal defendant, now a civil plaintiff, "had no constitutional right to a personal copy of the transcripts. His [the civil plaintiff's] constitutional right was fulfilled by [the defendant court reporter] because it has been established by uncontroverted affidavits that [the defendant court reporter] provided a full set of accurate transcripts to plaintiff's lawyer. Gay v. Watkins, 579 F. Supp. 1019, 1021 (E.D.Pa. 1984).
The Plaintiff has failed to establish any genuine issue of material fact that would establish that Defendant James was a state actor or that Defendant James violated Plaintiff's civil rights by denying him a copy of the requested documents or that Defendants failed to provide Plaintiff's defense counsel with such documents. Therefore, summary judgment in favor of Defendant James is appropriate with regard to Plaintiff's claim that his civil rights were violated by the fact the Defendant did not furnish the requested documents.
B. Denial of Access To Courts Claim
Plaintiff further claims in his original complaint that his civil rights were violated by the Defendants' failure to provide the requested documents because he was denied access to courts pursuant to the due process claim of the fourteenth amendment. This claim fails as well as Plaintiff has not been denied access to any court.
Prisoners have a constitutional right of access to the courts. Bounds v. Smith, 430 U.S. 817, 821, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977). This access must be adequate, effective and meaningful. Id. at 822. The framework developed by the Third Circuit for analyzing right of access challenges by indigent prisoners separates claims into two categories: (1) those that concern prisoner access to law libraries or alternative sources of legal knowledge and (2) those that affect merely comfort or convenience without depriving a prisoner of access to the courts. Peterkin v. Jeffes, 855 F.2d 1021, 1039 & 1041 (3d Cir. 1988). See also Hudson v. Robinson, 678 F.2d 462, 466 (3d Cir. 1982) (prisoner having to wait ten days to have document notarized not denial of access to courts).
Any matters falling in the latter category have an actual injury requirement to state a claim for which relief can be granted. Peterkin, 855 F.2d at 1041-42 (contrasting with the situation where injury is presumed by virtue of denial of access to legal knowledge). See also Hudson, 678 F.2d at 466 (delay is not an injury where the document was notarized before it was due). This court finds that he copies of documents or transcripts involved in this case would be included in the latter "convenience" category. Plaintiff claims no actual injury. He has already taken a direct appeal of his 1984 criminal conviction. See discussion supra (appeals taken at the Pennsylvania Superior Court and Supreme Court levels).
Furthermore, even if plaintiff alleged a deprivation of due process from an excessive delay in furnishing a trial transcript to be used for appeal or post conviction relief, there must be prejudice to the defendant. See DeLancy v. Caldwell, 741 F.2d 1246, 1247-48 (10th Cir. 1984). See also Barker v. Wingo, 407 U.S. 514, 530, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972) (listing four factors to be balanced to determine whether the criminal defendant was denied due process as the length of delay, reason for the delay, defendant's assertion of his right and prejudice to the defendant). Plaintiff has not alleged prejudice nor has Plaintiff stated any factual issues that he has been prejudiced. As stated above, Plaintiff already directly appealed his criminal conviction and Plaintiff has not specified any appeal he plans on pursuing. Therefore, summary judgment in favor of Defendant James is appropriate with regard to Plaintiff's access to courts claim.
C. Denial of Appeal Claim
The Plaintiff further claims in his original complaint that he has been unable to pursue his appeal rights. The Plaintiff was represented by counsel at each criminal trial, at the post conviction stage and at the appellate stages of these prosecutions. Plaintiff cannot assert that he has been denied the right to appeal his criminal convictions. Plaintiff has previously appealed each conviction to the Superior Court of Pennsylvania where each conviction was affirmed.
The Supreme Court of Pennsylvania has affirmed the death sentence imposed on Plaintiff from a homicide conviction. See Commonwealth v. Williams, 524 Pa. 218, 570 A.2d 75 (1990).
Plaintiff has failed to allege or to assert any issue of fact that he was denied any right to appeal. Therefore, summary judgment in favor of the Defendant James is appropriate with regard to the denial of appeal claim.
D. The § 1985(3) Conspiracy Claim
To come within § 1985(3), a complaint must allege four elements: (1) a conspiracy; (2) "for the purpose of depriving, directly or indirectly, any person or class of persons of equal protection of the laws, or of equal privileges and immunities under the laws"; (3) that the conspirators committed some act in furtherance of the conspiracy; and (4) that the plaintiff was either "injured in his person or property" or was "deprived of having and exercising any right or privilege of a citizen of the United States." Griffin v. Breckenridge, 403 U.S. 88, 103-04, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971); Bethel v. Jendoco Constr. Co., 570 F.2d 1168, 1172-73 (3d Cir. 1978).
Pleading conspiracy under § 1985(3) requires at least minimum factual support of the existence of a conspiracy. Robinson v. McCorkle, 462 F.2d 111, 113 (3d Cir. 1972) cert. denied, 409 U.S. 1042, 34 L. Ed. 2d 492, 93 S. Ct. 529 (1972). In this case, this court considered Plaintiff's Second Amended Complaint and his response. Neither give minimum factual support of a conspiracy. In his Second Amended Complaint, Plaintiff merely states that in or about June 1991 Defendants James and Abraham entered into a conspiracy to prevent him from receiving his requested documents. See Second Amended Complaint at PP 15, 18. Apparently the purpose of the conspiracy, that is the failure to produce the documents, is Plaintiff's alleged civil rights violation, which as this court discussed supra does not constitute a civil rights violation. Plaintiff never mentions how Defendant James was involved in this conspiracy nor does Plaintiff assert any acts committed in furtherance of the conspiracy, except for the fact he did not receive the documents he requested, which does not constitute a civil rights violation against James.
Plaintiff has not alleged or demonstrated any fact issue that Defendants engaged in a conspiracy to deprive Plaintiff of his civil rights. Therefore, Defendant's motion for summary judgment will be granted with regard to this claim.
E. Defendant's Prosecutorial Immunity
It is well established that an assistant district attorney is absolutely immune from suit based upon actions taken in his role as a prosecutor.
As far as Plaintiff's claim against James can be read in its broadest sense to be a claim against him in his role as an Assistant District Attorney, this claim must be dismissed. The Plaintiff has not established a cause of action which would defeat the absolute prosecutorial immunity of Defendant James.
Therefore in addition to the absence of any genuine issues of material fact, this court finds that Defendant James is immune regarding those claims that arise from his role as a prosecutor.
Based upon the foregoing this court finds that Plaintiff has failed to establish or demonstrate any genuine issues of material fact with regard to any of his claims. Therefore, this court will grant Defendant James' motion for summary judgment.
BY THE COURT:
MARVIN KATZ, J.
AND NOW, this 7th day of September, 1993, upon consideration of Defendant James' Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted Or, in the Alternative, Motion for Summary Judgment, it is hereby ORDERED that JUDGMENT is entered on behalf of Defendant James and against Plaintiff Williams based upon this court's order of the same date.
BY THE COURT:
MARVIN KATZ, J.