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Miller v. Ferguson

United States District Court, E.D. Pennsylvania

October 3, 2019

KENNETH MALIK MILLER, Plaintiff,
v.
TAMMY FERGUSON, et al, Defendants.

          MEMORANDUM

          JOEL H. SLOMSKY, J.

         Plaintiff 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.

         I. FACTS[1]

         Miller 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.)

         Miller 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 21-22.)

         Miller 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.[2] (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 28.)

         II. STANDARD OF REVIEW

         As the 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).

         III. DISCUSSION

         "To 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.

         A. Property Loss Claims

         The 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.

         The 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. at 21-22.)

         Conditions 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 ...


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