I. Motion for Leave to Amend Answer to the Complaint
In their original answer, which was filed on December 14, 1993, Defendants did not include the affirmative defense of "governmental immunity and/or qualified immunity." (Doc. 25.) By motion filed five months later--and very soon after Plaintiff had moved for partial summary judgment--Defendants requested leave to amend their answer pursuant to Federal Rule of Civil Procedure 15 so that this affirmative defense could be included. (Doc. 44.) In their supporting brief Defendants argue that their motion should be granted because, inter alia, Plaintiff will not be prejudiced and the progress of the suit will not be delayed. (Doc. 45.) Plaintiff opposes the motion primarily on grounds of "undue and unexplained delay" (Doc. 54, p. 3), prejudice, and waiver of the defense pursuant to Federal Rule of Civil Procedure 8(c). With regard to prejudice Plaintiff argues that "the Defendants waited until discovery was closed and 'ambushed' plaintiff with an unexpected defense." (Id. at p. 6.) Defendants concede that discovery had been closed when they filed their motion. (Doc. 44, p. 1.)
Federal Rule of Civil Procedure 8(c) states that all affirmative defenses, such as qualified immunity, must be pled in response "to a preceding pleading" such as a complaint. But "failure to raise an affirmative defense in a responsive pleading . . . does not always result in waiver." Kleinknecht v. Gettysburg College, 989 F.2d 1360, 1373 (3d Cir. 1993). The defense may be raised "in an appropriate motion [such as a summary judgment motion]" Id. (brackets added). Accord Batiste v. Burke, 746 F.2d 257, 258-259 n.1 (5th Cir. 1984) ("there is ample authority for raising affirmative defenses by summary judgment motion in the context of the official immunity defense . . ."). The Third Circuit Court of Appeals has also held that, pursuant to Federal Rule of Civil Procedure 15(a), "a responsive pleading may be amended at any time by leave of court to include an affirmative defense, and 'leave shall be freely given when justice so requires '. . . . Unless the opposing party will be prejudiced, leave to amend should generally be allowed." Charpentier v. Godsil, 937 F.2d 859, 863-64 (3d Cir. 1991) (quoting Rule 15(a)). The "'defendant does not waive an affirmative defense if 'he [or she] raised the issue at a pragmatically sufficient time, and [the plaintiff] was not prejudiced in its ability to respond.'" Id. at 864 (quoting Lucas v. United States, 807 F.2d 414, 418 (5th Cir. 1986))(internal quotation omitted). Rule 15(a), as Defendants emphasize, represents a liberal policy in favor of amendments. E.g., Adams v. Gould, 739 F.2d 858, 864 (3d Cir. 1984), cert. denied, 469 U.S. 1122, 83 L. Ed. 2d 799, 105 S. Ct. 806 (1985); Charpentier, 937 F.2d at 864.
In the instant action the court concludes that Defendants raised the issue of qualified immunity "at a pragmatically sufficient time" and by appropriate motion--both in a motion to amend their answer and in their summary judgment motion. More importantly, the court cannot find that Plaintiff was prejudiced by the Defendants' delay. The defense of qualified immunity, as discussed in greater detail below, concerns the existence of a plaintiff's clearly established rights. Harlow v. Fitzgerald, 457 U.S. 800, 815, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). The record shows that when Plaintiff conducted discovery he clearly contemplated whether Defendants were aware of the law handed down by the United States Supreme Court on which Plaintiff relied. For example, in Plaintiff's First Request for Admissions, Plaintiff requests three admissions of Defendant Schnarrs which focus on his knowledge of prisoners' constitutional right of access to the courts and of Bounds v. Smith, 430 U.S. 817, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977), the seminal case on access to the courts. (Doc. 39 (Pltf.'s Appendix in Support of Motion for Partial Summary Judgment), p. 3.) Similarly, in Plaintiff's Third Set of Interrogatories, Plaintiff poses three interrogatories to Defendant Black which center on his knowledge of the right to procedural due process in prison disciplinary proceedings and of Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974), the seminal case on this procedural due process right. (Id. at p. 25.)
Thus, the record severely undermines Plaintiff's claim that he was "ambushed" by Defendants' motion for leave to amend their answer. In addition, the determination of qualified immunity essentially is a legal rather than factual question, e.g., Siegert v. Gilley, 500 U.S. 226, 232, 114 L. Ed. 2d 277, 111 S. Ct. 1789 (1991), and Plaintiff had an opportunity--particularly in opposing Defendants' summary judgment motion--to rebut Defendants' assertion that they were entitled to qualified immunity. Accordingly, Defendants' motion for leave to amend their answer will be granted and the amended answer will be accepted by the court.
II. Motion to Strike Portions of the Defendants' Affidavits
In his motion pursuant to Federal Rule of Civil Procedure 56(e), Plaintiff challenges paragraphs of affidavits by all three defendants and by non-defendant John C. Peters, who worked as a Law Clerk to the Honorable Stewart L. Kurtz of the Court of Common Pleas of Huntingdon County and who oversaw the County Law Library when Plaintiff was confined in the Jail. These four affidavits were submitted in Defendants' Appendix in Opposition to Plaintiff's Motion for Summary Judgment.
Rule 56(e) provides, in pertinent part: " Affidavits shall be made on personal knowledge,  shall set forth such facts as would be admissible in evidence, and  shall show affirmatively that the affiant is competent to testify to the matters stated therein." Courts have held that "statements prefaced by the phrases, 'I believe' or 'upon information and belief' or those made upon an 'understanding' . . . are properly subject to a motion to strike." Carey v. Beans, 500 F. Supp. 580, 583 (E.D. Pa. 1980) (internal citation omitted), aff'd, 659 F.2d 1065 (3d Cir. 1981) (table). Accord Hlinka v. Bethlehem Steel Corp., 863 F.2d 279, 281-82 (3rd Cir. 1988). Also, the personal knowledge requirement means that affidavits must be "devoid of hearsay, conclusory language and statements which purport to examine thoughts as well as actions." Carey, 500 F. Supp. at 583 (citing Maiorana v. MacDonald, 596 F.2d 1072, 1080 (1st Cir. 1979)).
Applying these legal principles to each of the challenged statements in the four affidavits, it is clear that Plaintiff's motion to strike must be granted because each statement fails to satisfy at least one of the elements of the three-part test. In general, the statements were not based on the affiant's personal knowledge.
III. Cross-Motions for Summary Judgment
Having decided that Defendants are entitled to judgment as a matter of law on the procedural due process and mail-related claims, the court now will review the cross-motions for summary judgment as they pertain to the alleged violation of Plaintiff's right to access to the courts.
First, it is important to review the legal standards which must be applied in an analysis of the merits of a summary judgment motion.
Summary judgment analysis is two-pronged. Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The party moving for summary judgment bears the burden of showing the absence of a genuine issue as to any material fact. Young v. Quinlan, 960 F.2d 351, 357 (3d Cir. 1992). "As to materiality, 'it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs.'" Gabai v. Jacoby, 800 F. Supp. 1149, 1153 (S.D.N.Y. 1992).
If the court finds that there is an issue of fact in dispute, its inquiry does not end but takes up the second prong of the analysis. "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 [in dispute]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (emphasis in original). A dispute is "genuine" only if "there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party." Anderson, 477 U.S. at 242. "Once the moving party has carried the initial burden of showing that no genuine issue of material fact exists, the non-moving party 'must make a showing sufficient to establish the existence of every element essential to his case, based on the affidavits or by the depositions and admissions on file.'" Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 511 (3d Cir. 1994).
The non-moving party "cannot merely rely upon conclusory allegations in his [or her] pleadings or in memoranda and briefs to establish a genuine issue of material fact." Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir. 1992) (brackets added). All inferences, however, "'should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true.'" Pastore, 24 F.3d at 512. See also Betz Lab., Inc. v. Hines, 647 F.2d 402, 404 (3d Cir. 1981).
Next, the court considers the origin and nature of the constitutional right of access to the courts and the legal standards which govern the present claim. Courts have found different birthplaces of the right of access to the courts. E.g., Simmons v. Dickhaut, 804 F.2d 182, 183 (1st Cir. 1986) (sources of right of access include the First Amendment, the due process clauses, and the Privileges and Immunities Clause of Article IV, section 2). It is clear that this most important protection originates at least from the First Amendment and from the due process clauses of the Fifth and Fourteenth Amendments. Procunier v. Martinez, 416 U.S. 396, 419, 40 L. Ed. 2d 224, 94 S. Ct. 1800 (1974) ("The constitutional guarantee of due process of law has as a corollary the requirement that prisoners be afforded access to the courts in order to challenge unlawful convictions and to seek redress for violations of their constitutional rights"); Hudson v. Palmer, 468 U.S. 517, 523, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984) ("prisoners have the constitutional right to petition the Government for redress of their grievances, which includes a reasonable right of access to the courts").
The United States Supreme Court in Bounds v. Smith, 430 U.S. 817, 828, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977) 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 " (emphasis added). In its analysis the Bounds court stated that "our decisions have consistently required States to shoulder affirmative obligations to assure all prisoners meaningful access to the courts." Id. at 824. The Supreme Court teaches that in considering whether inmates' right to access to the courts is protected "the inquiry is . . . whether law libraries or other forms of legal assistance are needed to give prisoners a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts." Id. at 825. Although the Bounds court did not define "adequate," it
noted a number of 'alternative means to achieve [the stated] goal'. . . including 'adequate' law libraries; 'some degree of professional or quasi-professional legal assistance . . .; training of inmates as paralegal assistants to work under lawyers' supervision, the use of paraprofessionals and law students, either as volunteers or in formal clinical programs . . .;' or the use of attorneys as volunteers, part-time consultants or full-time staff counsel.