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Thompson v. Ferguson

United States District Court, E.D. Pennsylvania

October 2, 2019

PHILLIP A. THOMPSON, Plaintiff,
v.
TAMMY FERGUSON, et al., Defendants.

          MEMORANDUM

          SCHILLER, J.

         Currently before the Court is an Amended Complaint filed by Plaintiff Phillip A. Thompson, a prisoner currently incarcerated at SCI Phoenix, which raises claims pursuant to 42 U.S.C. § 1983 stemming from the destruction of inmate property during the transfer of prisoners from SCI Graterford to SCI Phoenix. Thompson also asserts claims related to his mail. For the following reasons, the Court will dismiss Thompson's claims based on the destruction of his property and sever the claims based on Thompson's mail.

         I. FACTS AND PROCEDURAL HISTORY[1]

         Thompson's initial Complaint named as Defendants: (1) Tammy Ferguson, Superintendent of SCI Graterford and SCI Phoenix; (2) Mandy Sipple, Deputy Superintendent of SCI Graterford and SCI Phoenix; (3) “C.E.R.T. Team John Does, ” the employees responsible for moving the inmates and their property; and (4) Secretary of Correction John Wetzel. Thompson generally alleged that members of a Corrections Emergency Response Team (“CERT”) who were responsible for transporting inmates' property from SCI Graterford to SCI Phoenix deliberately destroyed some of that property during the move. Thompson alleged that CERT members destroyed certain of his legal materials as well as photographs of family members in religious clothing. He also claimed that he had been housed in other facilities within the Department of Corrections and that he was generally disliked for filing grievances and standing up to the administration in matters of constitutional concern. He asserted claims under the First, Fifth, Sixth, Eighth, and Fourteenth Amendments, and appeared to seek relief based on the destruction of his own property as well as on behalf of prisoners other than himself who suffered similar property loss.

         After granting Thompson leave to proceed in forma pauperis, the Court screened the Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). Relevant here, the Court concluded that Thompson failed to state a claim for denial of access to the courts because he failed to allege that the loss or destruction of his legal property plausibly prevented him from pursuing an appeal from the denial of his third post-conviction petition, which was pending at the time of the move. The Court also observed that Thompson had not stated a First Amendment free exercise claim because the fact that the destroyed photographs contained religious content did not prevent Thompson from practicing his religion. Thompson could not state a due process claim based on the loss and/or destruction of his property due to the availability of post-deprivation remedies, and he failed to state an equal protection claim because he did not plausibly allege that he was treated differently from others similarly situated. Thompson also failed to state a retaliation claim because his allegations were too broad and generalized. However, the Court gave Thompson leave to file an amended complaint.

         Thompson filed an Amended Complaint which again names Ferguson, Sipple, Wetzel, and CERT John Does as Defendants, and adds Smart Communications as a Defendant. He brings First, Fifth, Sixth, Eighth and Fourteenth Amendment claims predominately based on the destruction of his legal property, photographs with religious content, and other personal property in connection with the transfer of prisoners to SCI Phoenix.[2] Thompson has also added claims that concern his mail, which were not included in the initial Complaint and that do not relate to the destruction of property that occurred during the transfer. He seeks compensatory and punitive damages, and reinstatement of his appellate rights and/or habeas-style relief. (Am. Compl. ECF No. 7 at 20-21.)

         Thompson was convicted of murder in 2001 but claims his innocence. As noted in the Court's prior Memorandum, (ECF No. 5 at 3-4), a search of public dockets reflects that Thompson was convicted of murder and related offenses in 2001.[3] See Commonwealth v. Thompson, CP-23-CR-0003788-2000 (Ct. of Common Pleas of Delaware Cty). Relevant here, in 2018, he appealed the dismissal of his third post-conviction petition as untimely and filed a concise statement of matters complained of on appeal prior to the transfer of prisoners to SCI Phoenix. Id. The transfer occurred while Thompson's appeal was pending. Thompson was given two extensions of time to file an appellate brief and timely filed his brief in January of 2019. Commonwealth v. Thompson, 1937 EDA 2018 (Pa. Super. Ct). The Pennsylvania Superior Court affirmed the dismissal of Thompson's post-conviction petition “because [the] petition [was] untimely and [Thompson] ha[d] not pled an exception to the time bar.” Commonwealth v. Thompson, 1937 EDA 2018, 2019 WL 1596195, at *3 (Pa. Super. Ct. Apr. 15, 2019).

         In his Amended Complaint, Thompson again alleges that he was denied access to the courts because his legal materials were destroyed while the appeal of his third post-conviction petition was pending. He lost “trial transcripts, affidavits, and relevant photos which would have had key value to support [his] innocen[c]e, and further show[n] that the affidavit/criminal complaint, was invalid.” (Am. Compl. ECF No. 7 at 15.) Thompson claims that the items were relevant to his appeal, and that although he received two extensions, he was “forced to file an incomplete brief” in the absence of his legal materials. (Id. at 17.)

         Turning to Thompson's non-legal property, he alleges that he lost “personal photos of himself and currently living, and deceased family, and friends displaying Islamic appearances, prayer rugs and long beards associated with sunni muslim beliefs.” (Id. at 15.) Thompson also lost other personal property in connection with the move including his television and radio.[4](Id.)

         Thompson's Amended Complaint adds claims not asserted in his original Complaint that the Court understands to relate to the Department of Corrections's recently adopted mail policy. “Pursuant to that policy, non-privileged incoming mail addressed to inmates must be sent to Smart Communications' facility in Florida where the mail is scanned, emailed to the facility where the inmate is located, printed by DOC staff, and delivered to the inmate.”[5] Robinson v. Pa. Dep't of Corr., Civ. A. No. 19-1689, 2019 WL 2106204, at *1 (E.D. Pa. May 13, 2019); see also Jacobs v. Dist. Attorney's Office, Civ. A. No. 10-2622, 2019 WL 1977921, at *3 (M.D. Pa. May 3, 2019). In contrast, “privileged inmate correspondence must be addressed and sent to the inmate at the address of the institution where he or she is housed.” See https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/803%20Inmate%20Mail%2 0and%20Incoming%20Publications.pdf (last visited Sept. 26, 2019) (emphasis in original).

         Thompson alleges that Wetzel, Ferguson and Sipple have contracted with Smart Communications to violate his right to communication “without intrusion of privacy.” (Am. Compl. ECF No. 7 at 18.) He alleges that “protected letters” from the courts and the district attorney's office were sent to Smart Communications, that he did not receive the original mail, and that the mail was not opened in his presence. (Id.) He also claims that privileged communications from attorneys are being opened, photocopied and placed in a database for seven years. (Id.)

         II. STANDARD OF REVIEW

         As Thompson is proceeding in forma pauperis, 28 U.S.C. § 1915(e)(2)(B)(ii) applies, which requires the Court to dismiss the Amended Complaint if it fails to state a claim. Whether the Amended Complaint fails to state a claim under § 1915(e)(2)(B)(ii) is governed by the same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), see Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires the Court to determine whether the complaint contains “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) (quotations omitted). Conclusory allegations do not suffice. Id. As Thompson is proceeding pro se, the Court construes his allegations liberally. See Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011).

         III. ...


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