United States District Court, M.D. Pennsylvania
JAMES M. OVERLY, Plaintiff,
DIANA WOODSIDE, et al., Defendants.
EDWIN M. KOSIK, District Judge.
The above civil rights action pursuant to 42 U.S.C. § 1983 was filed by James M. Overly, an inmate at the State Correctional Institution at Smithfield, Pennsylvania. He has paid the filing fee in this matter. Named as defendants are Diana Woodside, Policy Director for the Pennsylvania Department of Corrections, Jon Fisher, Superintendent at SCI-Huntingdon, and the Incoming Publication Review Committee ("IPRC"). In the complaint, he claims that his rights under the First Amendment and the Due Process Clause were violated when he was not permitted to have magazines that he ordered and paid for with money withdrawn from his inmate account. Pending is a motion to dismiss filed by the IPRC. (Doc. 10.)
Plaintiff claims that after reviewing the DOC's Incoming Publication denial list in July of 2013, he ordered magazines from the publication "SHOW". This publication did not appear on the list and is not known for nudity or obscenity. The list was thereafter updated in August and September of 2013, and "SHOW" magazine still did not appear on the denial list.
The magazines purchased by Plaintiff were older issues, and according to Plaintiff are possessed by other inmates throughout the prison. Plaintiff placed orders on August 5, 2013 and August 12, 2013, totaling $90.40. He states that his order forms were reviewed, approved and processed, and that the money was then deducted from his prison account and sent to the magazine company.
When the magazines arrived at SCI-Smithfield, they were reviewed by the IPRC, and denied for containing nudity, on September 26, 2013. Plaintiff appealed the matter to the Facility Manager and the Secretary's Office of Inmate Grievances and Appeals, but was unsuccessful.
Plaintiff states that the pages of the magazines that the IPRC claims contain nudity do not have nudity. He has verified this by checking those page numbers in the same magazine issues possessed by other inmates at the prison. Following the denial of his grievance and related appeals, Plaintiff claims that the magazines in question were thereafter placed on the December 2013 Publication denial list, never having appeared on the list prior to that point. Based on the foregoing, Plaintiff claims his rights to free speech and due process of law were violated.
Following service of the complaint, an answer was filed by Defendants Woodside and Fisher. Pending is a motion to dismiss filed by IPRC. Plaintiff did not file an opposition brief to the motion. Rather, he submitted an amended complaint wherein he replaces Defendant IPRC with John Newman, the committee member who reviewed the magazines when they arrived at the prison. The only other change in the amended complaint is the amount his inmate account was charged for the magazines, which Plaintiff now states is $95.35 as opposed to $90.40.
II. Motion to Dismiss Standard
Defendant IPRC moves to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) on the basis that the claims stated therein against it are barred by the Eleventh Amendment. Rule 12(b)(1) allows a court to dismiss a complaint based on a lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). A Rule 12(b)(1) motion is the proper mechanism for raising the issue of whether Eleventh Amendment immunity bars federal jurisdiction. Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 694 n.2 (3d Cir. 1996), citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984)(Eleventh Amendment is a jurisdictional bar which deprives federal courts of subject matter jurisdiction.)
The Eleventh Amendment provides as follows:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, ...