Juan R. Sánchez, J.
Plaintiff James Williams brings this action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights during his time as a prisoner at Lehigh County Prison (LCP) by several Defendants, including Lehigh County Prison Warden Dale Meisel, Deputy Warden Nancy Afflerbach, Correctional Officer Nat Carrion, and Sheriff Ronald Rossi in their individual and official capacities. Defendants have filed a motion to dismiss for failure to state a claim, and for the reasons set forth below, this motion will be granted.
On August 21, 2001, Williams was convicted in the Lehigh County Court of Common Pleas of first degree murder, robbery, and conspiracy to commit robbery. He was sentenced to death. On April 21, 2006, the Pennsylvania Supreme Court affirmed his conviction. Williams was incarcerated at LCP during both his initial trial and the pendency of his postconviction claims, and he now asserts several claims arising out of his stay at LCP.
To survive a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the facts pleaded “allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. In evaluating a Rule 12(b)(6) motion, a court first must separate the legal and factual elements of the plaintiff’s claims. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). The court “must accept all of the complaint’s well-pleaded facts as true, but may disregard any legal conclusions.” Id. at 210-11. The court must then “determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a ‘plausible claim for relief.’” Id. at 211 (quoting Iqbal, 556 U.S. at 679). Where, as here, the plaintiff is proceeding pro se, “the court has an obligation to construe the complaint liberally.” Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009).
When dismissing a civil rights complaint for failure to state a claim, a district court must grant the plaintiff leave to amend—even when the plaintiff does not request leave—unless amendment would be inequitable or futile. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007). Because it is not clear that amendment would be futile as to Williams’s claims against Deputy Warden Afflerbach for interference with his access to the courts, violation of his procedural due process rights, and conspiracy, against Officer Carrion for interference with his access to the courts and retaliation, and against Warden Meisel for interference with mail, Williams’s § 1983 claim will be dismissed without prejudice to Williams’s right to file an amended complaint which cures the deficiencies identified herein as to those claims. However, Williams’s claims against Officer Carrion for sexual abuse and failure to protect, against Sheriff Rossi for excessive force, and against the LCP staff for verbal harassment will be dismissed with prejudice and may not be reasserted.
A. Claims Against Deputy Warden Afflerbach
Williams asserts Deputy Warden Afflerbach was engaged in a conspiracy with a Lehigh County First Assistant District Attorney (ADA) whereby Afflerbach would steal information from Williams’s prison cell about his defense strategies (by confiscating his papers and/or planting informants in his cell) and then share this information with the ADA to sabotage his defense. Although Williams only discovered the conspiracy in August 2011, he claims it began in October 1999, during his original court proceedings and continued throughout his federal habeas proceedings from December 2010 to April 2012. Specifically, Williams alleges that on March 15, 2011, a prosecutor used a stolen defense document during a hearing on his federal habeas petition, and in July 2011, Afflerbach raided Williams’s cell and confiscated all of his legal materials, including notes relating to the scheduled cross-examination of Afflerbach and the ADA.
Williams does not specify which of his constitutional rights Afflerbach allegedly violated, but based on the facts asserted, there are three possible claims: (1) denial of access to the courts, (2) denial of procedural due process, and (3) conspiracy. All, however, will be dismissed as meritless.
First, Williams fails to allege a plausible claim of denial of access to the courts. Prisoners have a fundamental right of access to the courts, but to establish a claim of interference with such a right, the inmate must demonstrate “actual injury” and show that the alleged violation “hindered his efforts to pursue a legal claim.” Lewis v. Casey, 518 U.S. 343, 351 (1996); id. at 353 (explaining the inmate must “demonstrate that a nonfrivolous legal claim ha[s] been frustrated or [is] being impeded” due to the alleged act (footnotes omitted)). “Depriving someone of a frivolous claim . . . deprives him of nothing at all, except perhaps the punishment of Federal Rule of Civil Procedure 11 sanctions.” Id. at 353 n.3. As a result of the defendant’s actions, the plaintiff must have lost the ability to present either a claim challenging the validity of his sentence on direct or collateral appeal or a claim challenging his conditions of confinement in a civil rights action. Id. at 355.
In Monroe v. Beard, the Third Circuit affirmed the dismissal of an access to the courts claim in which inmates alleged prison officials seized their legal materials. 536 F.3d 198, 206 (3d Cir. 2008). The Court found the plaintiffs’ claim “rested solely on the ground that the defendants confiscated their legal materials, contraband and non-contraband alike.” Id. Even though the plaintiffs “alleged that they lost the opportunity to pursue attacks of their convictions and civil rights claims” they “did not specify facts demonstrating that the claims were nonfrivolous. Nor did they maintain that they had no other remedy to compensate them for their lost claims.” Id.
Similarly, in this case, even accepting Williams’s allegations as true, he fails to show how confiscation of his legal documents prevented him from successfully presenting a nonfrivolous claim. First, Williams alleges Afflerbach seized documents from his cell during his criminal trial and subsequent legal proceedings (presumably in addition to the July 2011 raid he specifically describes in his Amended Complaint), but he does not assert that, as a result, he was prevented from defending his case or suffered any detriment. Second, even if the prosecutor in his habeas hearing used a stolen defense document, Williams has not demonstrated he was asserting a nonfrivolous claim or explained how the prosecutor’s reliance on that document frustrated the presentation of his case. Lastly, Williams has not shown how the theft of his cross-examination notes in the July 2011 raid impeded the presentation of his habeas petition. Because Williams has not demonstrated he was prevented from pursuing his legal claims, his access to courts claim will be dismissed without prejudice to reassertion.
Williams also fails to allege a plausible procedural due process claim. To establish a procedural due process violation, the plaintiff must demonstrate “there exists a liberty or property interest which has been interfered with by the State” and “the procedures attendant upon that deprivation were [not] constitutionally sufficient.” Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989); see also Zinermon v. Burch, 494 U.S. 113, 125 (1990) (“In procedural due process claims, the deprivation by state action of a constitutionally protected interest in ‘life, liberty, or property’ is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law.”); Shoats v. Horn, 213 F.3d 140, 143 (3d Cir. 2000) (“Once we determine that the interest asserted is protected by the Due Process Clause, the question then becomes what process is due to protect it.” (internal citations omitted)). In the prison context, if officials take property from a prisoner and the deprivation is not pursuant to some established state procedure, there is no violation of procedural due process as long as there is an adequate postdeprivation remedy, ...