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May 5, 1995

FRED SCHNARRS, et al., Defendants

The opinion of the court was delivered by: RAMBO


 Before the court is an action initiated under 42 U.S.C. ยง 1983 by Charles Turiano, who is presently incarcerated in State Correctional Institution-Huntingdon ("SCI-Huntingdon") in Huntingdon, Pennsylvania. During the time pertinent to this suit Plaintiff was a pretrial detainee in Huntingdon County Jail (the "Jail") in Huntingdon. Plaintiff names as defendants (each sued in their individual capacities): Fred Schnarrs, Jail Warden; Duane Black, Jail Deputy Warden; and Richard Smith, a Jail corrections officer. (Doc. 14.)

 Plaintiff filed his original complaint on March 31, 1993, essentially claiming that his rights under the United States Constitution had been violated because: (1) the Jail was hot, dirty, had inadequate plumbing, and was infested with insects; (2) the Jail law library was inadequate and inmates were prevented from providing legal assistance to other inmates; (3) newspapers were withheld from him or were delivered in incomplete form; (4) Jail officials did not readily provide carbon paper to inmates; (5) inmates were prevented from sealing outgoing mail and that one of Plaintiff's pieces of mail was kept from him; (6) when Plaintiff was in solitary confinement, Jail officials kept his cell lighted all the time; and (7) Jail officials denied Plaintiff a visit with his niece. *fn1" (Doc. 1.)

 On July 20, 1993 Plaintiff amended his complaint. (Doc. 14.) In the amended complaint he does not include some of his prior complaints and specifically alleges that his rights under the First, Sixth, and Fourteenth Amendments to the United States Constitution were violated as follows: (1) Defendants violated Plaintiff's right to access to the courts since they neither provided an adequate law library for inmates nor provided sufficient legal assistance by individuals; (2) Defendants violated Plaintiff's procedural due process rights in multiple prison disciplinary proceedings; (3) Defendants opened incoming and outgoing legal mail without Plaintiff present; and (4) Defendants withheld some personal mail sent from the Veterans' Administration. (Id. at pp. 1-8.) Plaintiff requests a declaratory judgment, compensatory damages, and such other relief as the court finds proper. (Id. at p. 10.)

 A brief summary of key undisputed events giving rise to this action is in order. Plaintiff was confined in the Jail as a pre-trial detainee awaiting disposition of criminal homicide charges from June 19, 1990 until May 21, 1991. (Doc. 14, p. 4; Doc. 37 (Pltf.'s Statement of Undisputed Material Facts (attached to Pltf.'s Partial Summary Judgment Motion)), unnum. p. 1; Doc. 42 (Deft.s' Statement of Undisputed Material Facts), p. 1.) Plaintiff was transferred from the Jail to State Correctional Institution-Camp Hill in Camp Hill, Pennsylvania and was later convicted and sentenced. (Doc. 42 (Defts.' Statement of Undisputed Material Facts), pp. 1, 7; Doc. 55 (Pltf.'s Response to Defts.' Statement of Undisputed Material Facts), pp. 1, 3.) Defendant Schnarrs became Jail Warden on June 15, 1990. (Doc. 47, unnum. p. 2.) Defendants Black and Smith were employed as Deputy Warden and corrections officer, respectively, throughout the time when Plaintiff was confined in the Jail. (Doc. 42, p. 2.; Doc. 55, p. 1.)

 The Jail can hold fifty (50) inmates and usually contains forty (40) prisoners. (Doc. 50 (Schnarrs Aff. within Defts.' Appendix in Opposition to Pltf.'s Motion for Summary Judgment), p. 15. *fn2" ) Throughout his pretrial detention Plaintiff was represented by counsel in his criminal proceeding. (Doc. 56 (Pltf.'s Opposing Brief to Defts.' Summary Judgment Motion), p. 7; Doc. 39 (Pltf.'s Appendix in Support of Motion for Partial Summary Judgment), p. 8., Doc. 48 (Defts.' Opposing Brief) *fn3" , unnum. p. 10.) While Plaintiff was detained in the Jail, a small library existed for inmates' use. The Jail library contained legal and non-legal materials, but, during Plaintiff's confinement in the Jail, did not contain: 1) volumes 1-700 of the Federal Supplement; 2) volumes 1-800 of the Federal Reporter, Second Series; 3) only two volumes of the Supreme Court Reporter; 4) Title 42 of the United States Code; or 5) any federal indices, federal annotated statutes, or other reference materials. (Id. (Answers to Pltf.'s First Request for Admissions) at pp. 4-5, 11-12.) The Jail had a paging system whereby Jail officials would obtain law books or copies of cases--and perhaps other legal reference materials--from the Huntingdon County Courthouse Law Library (the "County Law Library") which were requested by Jail inmates. (Id. at p. 6.; Doc. 50 (Peters Affidavit), p. 25.) *fn4"

 When Plaintiff was detained, no Jail staff member had been trained to provide legal assistance to any inmate who wished to initiate a civil suit. (Doc. 39, p. 8.) The Jail had no service contracts with "any legal services agency" to provide legal assistance to inmates, but Jail officials could give the names of legal assistance referral services (for example, Keystone Legal Services) to inmates upon their request. (Id. at pp. 7, 10.) (Plaintiff received a letter dated November 8, 1993 from Frederick R. Gutshall of the Huntingdon County Public Defender's office which stated that that office handles only state-level criminal defense work and not any civil litigation. (Doc. 39, p. 18.)) Plaintiff never requested legal assistance from any of the Defendants nor from any other Jail employees. (Doc. 42, unnum. pp. 3,4; Doc. 55, p. 2.) *fn5" Plaintiff concedes that Defendants Black and Smith "are not involved in policy-making" at the Jail nor "responsible for purchasing and/or supplying law books, legal materials or legal assistance." (Doc. 42, unnum. p. 4; Doc. 55, p. 2.)

 Before the court are four motions which have been fully briefed and are ripe for consideration: (1) motion for partial summary judgment (access to the court and procedural due process claims) by Plaintiff (Doc. 37); (2) motion for summary judgment by Defendants (Doc. 41); (3) motion for leave to amend answer to the complaint by Defendants with amended answer attached (Doc. 44); and (4) motion to strike portions of affidavits (submitted by Defendants) by Plaintiff. (Doc. 52.) First, the motion for leave to amend answer and the motion to strike will be addressed. Then, the court will consider the cross-motions for summary judgment. *fn6"

 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.) *fn7"

 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. *fn8"

 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 ...

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