United States District Court, E.D. Pennsylvania
PHILLIP A. THOMPSON, Plaintiff,
TAMMY FERGUSON, et al., Defendants.
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.
FACTS AND PROCEDURAL HISTORY
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
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
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. 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.)
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. 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).
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.)
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.(Id.)
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.” 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
0and%20Incoming%20Publications.pdf (last visited Sept. 26,
2019) (emphasis in original).
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.)
STANDARD OF REVIEW
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).