United States District Court, E.D. Pennsylvania
H. SLOMSKY, J.
Kenneth Malik Miller, a prisoner currently incarcerated at
SCI Phoenix, filed this civil action pursuant to 42 U.S.C.
§ 1983 based on allegations related to the destruction
of inmate property during the transfer of prisoners from SCI
Graterford to SCI Phoenix. In a Memorandum and Order entered
on August 30, 2019, the Court dismissed Miller's
Complaint without prejudice and granted him leave to file an
amended complaint if he was able to cure the defects the
Court identified in his original pleading. The Court received
Miller's Amended Complaint ("AC") on September
10, 2019. He again names 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. John Does," the employees
responsible for the move; and (4) Secretary of Correction
John Wetzel in their individual capacities. He has added as
an additional Defendant Smart Communications
("Smart"). For the following reasons, the Court
will dismiss the AC in part with prejudice and in part
without prejudice, sever the claim against Defendant Smart,
and grant Miller another opportunity to amend his claims.
was previously incarcerated at SCI Graterford. As that prison
was closing, inmates and their property were relocated to SCI
Phoenix. Similar to his original pleading, in the AC Miller
alleges members of a Corrections Emergency Response Team
("C.E.R.T.") took custody of prisoners'
property in connection with the move. Miller alleges that his
property was destroyed, lost, or left in disarray. He
contends that Defendants Wetzel, Ferguson and Sipple
"orchestrated the removal and destruction of
Plaintiffs['] personal property which consisted of
constitutionally protected items." (ECF No. 11 at 13.)
He also alleges that the C.E.R.T. members "were the
henchmen that deliberately damaged, destroyed and disarranged
legal and other protected properties of plaintiff by the
consent of the above Defendants (Wetzel, Ferguson, Sipple)
that hired and paid Defendants (C.E.R.T.) for this
purpose." (Id. (parentheticals in original).)
Miller asserts that Department of Corrections policies
governing the packing of property and transfer of inmates
were disregarded, his grievances resulted in a monetary
settlement that Ferguson and Sipple failed to honor, and he
was not compensated for his "constitutionally protected
items." (Id. at 14.)
asserts that the manuscript of an about to be self-published
book he authored about jailhouse lawyering was destroyed in
the move. (Id. at 15.) Miller contends that he has a
First Amendment expression right in his manuscript and its
deliberate destruction violated his rights. (Id. at
16.) He also alleges a First Amendment violation arising from
art supplies and finished origami artwork that was destroyed
(id. at 17-18), and from the destruction of a
collage of historical family photographs (id. at
18). He alleges an Eighth Amendment violation arising from
the destruction or loss of his orthopedic style shoes that he
wore to alleviate pain from a pre-incarceration broken ankle.
(Id. at 21.) He alleges the shoes constituted a life
necessity and all Defendants acted with deliberate
indifference to his health and safety. (Id. at
alleges a Free Exercise claim arising from the deliberate
destruction of religious items including his kufis, books, a
prayer rug, and Islamic wall posters. (Id. at 22.)
He asserts that there was no penological reason for his being
denied these religious items, the denial of the items
constituted an atypical hardship of incarceration, deprived
him of due process, and constituted cruel and unusual
punishment. (Id. at 23-24.) Miller asserts a First
and Sixth Amendment claim based on the destruction of his
legal property. (Id. at 25.) He also alleges that
legal mail was opened outside of his presence, his
attorney/client legal mail was photocopied, Defendants
Wetzel, Ferguson and Sipple conspired with Defendant Smart,
which Miller contends is an agent under contract with the
Department of Corrections, to "open and photocopy [his]
legal content, including photographs, before sending the
photo copies to plaintiff.'' (Id. at 26-27.)
He also alleges that non-party the United States Postal
Service is part of the conspiracy to photocopy his mail.
(Id. at 27.) Finally, he asserts that Wetzel,
Ferguson and Sipple were motivated to destroy his property in
order to sell the same items back to him. (Id. at
STANDARD OF REVIEW
Court previously granted Miller leave to proceed in forma
pauperis, 28 U.S.C. § 1915(e)(2)(B)(ii) applies,
which requires the Court to dismiss the AC if it fails to
state a claim. Whether a 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 AC 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 Miller is proceeding pro se, the
Court construes his allegations liberally. Higgs v.
Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011).
state a claim under § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of
the United States, and must show that the alleged deprivation
was committed by a person acting under color of state
law." West v Atkins, 487 U.S. 42, 48 (1988).
For the following reasons, Miller has again failed to state
plausible § 1983 claims.
Property Loss Claims
Court previously determined that the destruction of
Miller's non-legal, non-religious personal property did
not provide a basis for a claim under the Eighth or
Fourteenth Amendments. (FXF No. 9 at 5-7.) In the AC, Miller
attempts to reframe his claims based upon the loss of his
manuscript (ECF No. 11 at 16-18), his art supplies and
finished works of art (id. at 18-19), and his
historical family photographs (id. at 19-21) as
First Amendment free expression claims, rather than
Fourteenth Amendment due process claims as originally pled.
Regardless of the label Miller has attached, it remains that
his claim is based on the destruction of personal property.
While the Court does not question that the property had
significant artistic, historic, or literary value, the fact
that it has such value does not change its characterization
as personal property. Accord Blake v JPay, Civ. A.
No. 18-3146, 2019 WL 3858158, at *2 (D. Kan. Aug. 16, 2019)
(destruction of prisoner's manuscripts treated as loss of
personal property; due process claim rejected as not
plausible where adequate post-deprivation remedy existed);
McFadden v. Mail Room Staff, Civ. A. No. 13-1029,
2014 WL 4924306, at *3 (M.D. N.C. Sept. 30, 2014) (prisoner
failed to state a cognizable First Amendment claim under
§ 1983 based on destruction of manuscript by prison
mailroom because, although prisoners enjoy a protected First
Amendment interest in sending and receiving mail, he
possessed a meaningful post-deprivation remedy for loss of
his personal property). It is clear that the First Amendment
protects the right to receive and disseminate ideas. Red
Lion Broadcasting Co v. FCC, 395 U.S. 367 (1969);
Stanley v Georgia, 394 U.S. 557, 564 (1969). It is
equally clear that incarceration does not strip one of his
First Amendment rights, and that the guarantees of that
constitutional provision are applicable to states under the
Fourteenth Amendment. Cruz v. Beto, 405 U.S. 319
(1972); Long v Parker, 390 F.2d 816 (3rd Cir. 1968).
However, the destruction of a prisoner's personal
property does not implicate the First Amendment merely
because the destroyed property is allegedly the product of
expression. Accordingly, Miller's First Amendment
property loss claims involving his manuscript, art, and
photographs are not plausible and are dismissed pursuant to
28 U.S.C. § 1915(e)(2)(B)(ii). Having already afforded
Miller an opportunity to amend his property loss claim, and
it appearing that any further attempts would be futile, the
claims involving his manuscript, art, and photographs are
dismissed with prejudice.
only additional personal property related allegation Miller
includes in the AC that he did not allege in the original
pleading concerns his orthopedic shoes. He specifically
asserts that his orthopedic shoes are a life necessity and
that all Defendants acted with deliberate indifference to his
health and safety by losing or destroying them. (Id.
of confinement violate the Eighth Amendment's prohibition
on cruel and unusual punishment if they satisfy two criteria.
First, the conditions "must be, objectively,
sufficiently serious" such that a "prison
official's act or omission ... result[s] in the denial of
the minimal civilized measure of life's
necessities." Farmer v. Brennan,511 U.S. 825,
834 (1994) (citations and internal quotation marks omitted).
Second, the official responsible for the challenged
conditions must exhibit a "sufficiently culpable state
of mind," which "[i]n prison-conditions cases ...
is one of deliberate indifference to inmate health or
safety." Id. In most cases, the destruction of
property does not equate to a sufficiently serious
deprivation that would give rise to a claim under the Eighth
Amendment. See Payne v. Duncan, Civ. A. No. 15-1010,
2017 WL 542032, at *9 (M.D. Pa. Feb. 9, 2017)
("Plaintiffs claim for destruction of property under the
Eighth Amendment does not constitute a deprivation of
life's necessities."), aff'd, 692
Fed.Appx. 680 (3d Cir. 2017); Dean ...