                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-29-2006

Jacobs v. Beard
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1722




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                                                     NOT PRECEDENTIAL

               UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT

                             NO. 05-1722
                          ________________

                           ANDRE JACOBS,

                                         Appellant


                                    v.

       JEFFREY BEARD, Pennsylvania Department of Corrections;
 THOMAS MCCONNELL; CAROL SCIRE; GREGORY GIDDENS; ALLEN
LYNCH; ROBERT BITTNER; CAPTAIN J. SIMPSON; KRISTIN P. RESSING;
 MICHAEL FERSON; SHELLY MANKEY; WILLIAM STICKMAN; FRANK
    CHERICO; DAVID MCCOY; ROBERT FRANK, Sergeant; JEFFREY
    FORTE, Lieutenant; FRANK COLE, Major of the Guards; GREGORY
     MOHRING, Lieutenant; A. E. YUHOUSE, Corrections Officer; FNU
        WINTERS, Corrections Officer; JOEL DICKSON, Deputy
        Superintendent; SERGEANT MCGRADY, Property Officer
               ____________________________________

             On Appeal From the United States District Court
                For the Western District of Pennsylvania
                       (D.C. Civ. No. 04-CV-01366)
               District Judge: Honorable Joy Flowers Conti
             _______________________________________


               Submitted Under Third Circuit LAR 34.1(a)
                            March 1, 2006

  Before: BARRY, STAPLETON AND GREENBERG, CIRCUIT JUDGES

                        (Filed: March 29, 2006 )
                                _______________________

                                       OPINION
                                _______________________

PER CURIAM

       André Jacobs appeals from an order of the United States District Court for the

Western District of Pennsylvania, granting defendants’ motion to dismiss his civil rights

complaint. We will vacate the order and remand for further proceedings.

       Jacobs filed a complaint alleging unlawful seizure and destruction of some of his

legal papers, defamation of character, conspiracy, retaliation, discrimination,

unconstitutional interference with access to courts, denial of due process, and maintaining

false business records based on incidents occurring when he was an inmate at SCI-

Pittsburgh (he has since been transferred). We have jurisdiction pursuant to 28 U.S.C.

1291. We exercise plenary review of the District Court’s dismissal of Jacobs’ complaint

pursuant to Fed. R. Civ. P. 12(b)(6). Gary v. Air Group, Inc., 397 F.3d 183, 186 (3d Cir.

2005). Because we are reviewing the grant of a motion to dismiss, we accept as true all

factual allegations in the complaint and view them in the light most favorable to Jacobs.

Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 183 (3d Cir. 2000). We will

affirm only if it appears no relief can be granted under any set of facts the plaintiff could

prove. Alston v. Parker, 363 F.3d 229, 232-33 (3d Cir. 2004).

       Jacobs’ complaint was based primarily on two incidents. On September 15, 2003,

inmate Eric Lyons was leaving the prison library. Officer Chirico searched him, and

                                              2
“found 151 pages of legal work belonging to Jacobs.” See Misconduct Report A469502

(against Lyons), attached to complaint. Chirico accused Lyons of lying and saying the

materials were his, and told him he was violating prison policy by possessing another

inmate’s legal work when he was not “recognized as a legal aid.” Id. According to

Lyons’ affidavit, attached to Jacobs’ complaint, the 151 pages were sent to the Security

Office. Lyons complained to Lt. Giddens, a shift supervisor, who said he would look into

it. According to Lyons, Giddens later came to his cell and said “he would have been a

fool to return the legal materials to Mr. Jacobs,” because “his name was listed on a

separate planned civil action and that he anticipated that all the materials will likely be

destroyed.” Jacobs filed a grievance complaining about the seizure of his documents,

noting Giddens’ statement that he would have been a fool to return the documents, and

disputed whether the prison could legally have a policy prohibiting other inmates from

assisting with legal matters. See Grievance No. 63417, attached to the complaint. The

initial review response (which was performed by Lt. Giddens) stated that only two pages

of Jacobs’ documents had been seized, and stated that his “claim of 151 pages is an

outright fabrication and subject to a misconduct for lying,” even though Chirico himself

had stated in his report that he had seized 151 pages of documents belonging to Jacobs.

On appeal, Superintendent Stickman agreed that only two pages had been seized and

stated that they would not be returned because they were considered contraband. The

Chief Grievance Officer affirmed on final review, stating that the legal materials were



                                              3
properly confiscated because they were in the possession of another inmate.

       Jacobs also alleged that on September 16, 2003 (the day after documents were

seized from Lyons), Jacobs’ cell was searched, and additional legal documents were

confiscated from him; i.e., two declarations that had been executed by inmate Gary

Banks, which Jacobs had planned to attach to his legal filings. Jacobs alleged that Lt.

Giddens threatened Banks with bodily harm if he continued to help Jacobs in his legal

endeavors. (An affidavit by Banks attesting to the same is attached to Jacobs’ complaint).

Jacobs was charged with refusing an order, possession of contraband and loaning or

borrowing property. The disciplinary hearing report is largely illegible, but it appears he

was found guilty of the latter two offenses, and was sanctioned with 30 days of

disciplinary confinement. The misconduct was affirmed by the Program Review

Committee and on second level appeal and final review.

       After Jacobs filed his complaint, the defendants filed a motion to dismiss pursuant

to Fed. R. Civ. P. 12(b)(6). The Magistrate Judge recommended that it be granted, citing

Hudson v. Palmer, 468 U.S. 517 (1984), because “the Fourth Amendment right to be free

from unreasonable searches and seizures is inconsistent within the prison environment.”

The Report further recommended dismissing the retaliation claim because “the conduct of

which the plaintiff complains was not constitutionally protected,” and even if it was, “he

has failed to set forth any bases upon which one might conclude that he suffered ‘adverse

action’ as a result of the conduct about which he complains.” The Report also notes that



                                             4
Jacobs “knew that prison policy bans inmates from possessing legal materials belonging

to another inmate.” The District Court adopted the Report and Recommendation in a one-

page order.

       Accepting as true the factual allegations in the complaint and all reasonable

inferences that can be drawn therefrom, as we must, see Nami v. Fauver, 82 F. 3d 63, 65

(3d Cir. 1996); we find that Jacobs’ allegations regarding retaliation are sufficient to

survive § 12(b)(6) dismissal. To show that prison officials retaliated against a prisoner for

exercising his constitutional rights, the prisoner must plead three elements: 1) the

conduct in which he was engaged was constitutionally protected; 2) he suffered “adverse

action” at the hands of prison officials; and 3) his constitutionally protected conduct was

a substantial or motivating factor in the decision to discipline him. Rauser v. Horn, 241

F.3d 330, 333 (3d Cir. 2001). Once he has made his prima facie case, the burden shifts

to the defendant to prove by a preponderance of the evidence that it “would have made

the same decision absent the protected conduct for reasons reasonably related to

penological interest.” Carter v. McGrady, 292 F.3d 152, 158 (3d Cir. 2002) (internal

quotation and citation omitted).

       Here, the District Court stated, without explaining, that “the conduct of which the

plaintiff complains was not constitutionally protected.” Report and Recommendation at

3. The Court may have believed that Jacobs was asserting a right to possess the legal




                                              5
    materials of other inmates.1   We believe Jacobs was asserting a broader right; that of

    access to the courts, which is constitutionally protected. Lewis v. Casey, 518 U.S. 343,

    355 (1996).

           We also believe that Jacobs sufficiently pled the second element; adverse action.

    Jacobs alleged that as a result of the seizure of his legal materials, he lost parties from a

    lawsuit, he was prevented from pursuing certain claims and he was given a disciplinary

    sanction of segregation. Of course, to win a retaliation claim, the plaintiff must show that

    the adverse action was “sufficient to deter a person of ordinary firmness from exercising

    his First Amendment rights.” Allah v. Seiverling, 229 F.3d 220, 224-25 (3d Cir. 2000)

    (internal quotation and citation omitted). However, “unless the claimed retaliatory action

    is truly ‘inconsequential,’ the plaintiff’s claim should go to the jury.” Bell v. Johnson,

    308 F.3d 594, 603 (6 th Cir. 2002). We find that Jacobs’ allegations are not

    inconsequential.

           As to the third element, Jacobs presented evidence that the seizure of his

    documents may have been motivated by his prior grievances filed against prison officials,

    and by a desire to prevent him from filing a lawsuit in the future. In particular, Jacobs’

       1
1        To the extent Jacobs argues that prisoners have a right to assist each other on legal
2   matters, the Supreme Court has held that prisons may, if consistent with Turner v. Safely,
3   482 U.S. 72 (1987), restrict inmates from assisting other inmates in legal matters. Shaw
4   v. Murphy, 532 U.S. 223 (2001). Although the prison policy Jacobs cites as support for
5   his position (DC-ADM 007) does not expressly prohibit one inmate from aiding another
6   inmate, it does provide for official “Inmate Legal Reference Aides” and also provides that
7   such Aides may not assist LTSU inmates (Jacobs was in LTSU at the time of the
8   incidents complained of ). This is similar to the policy upheld in Shaw.

                                                   6
complaint states, inter alia, that “[a]mongst the materials seized from Mr. Lyons was an

anticipated lawsuit in which defendants Giddens, Stickman and Scire were all named as

defendants,” Complaint at ¶ 38; that Giddens admitted to inmate Banks that he “would be

a fool to return the legal materials” because he was named as a defendant in the papers,

Complaint at ¶ 39 and Exhibit A; and that after reading the affidavits that inmate Banks

had prepared for Jacobs, “Giddens threatened Mr. Banks with bodily harm if he continued

to assist Plaintiff in his legal endeavors against D.O.C. officials,” Complaint at ¶ 50. All

of these allegations, taken as true, tend to show that the prison officials may have had a

retaliatory motive in seizing Jacobs’ documents.

       As noted previously, if a prisoner establishes a prima facie case of retaliation, the

burden then shifts to the defendants to show that they would have taken the same action

absent the protected conduct for reasons reasonably related to penological interest.

Defendants argue that because the legal documents were “contraband,” the documents

were taken for a legitimate penological reason. We can understand that in the case of the

documents seized from inmate Lyons, the prison might choose to categorize the

documents as “contraband” in the hands of Lyons, but it does not necessarily follow that

the documents should be destroyed, rather than returned to their owner. Indeed, when

Jacobs filed a grievance concerning those documents, a staff member responded that he

would “review the matter with Lt. Giddens, and, if appropriate, the items will be returned

to you.” A jury could infer that only after Giddens determined that the papers included a



                                              7
planned lawsuit against him did he decide that the papers should be destroyed as

“contraband.” In the case of the documents seized from Jacobs’ cell, it is not clear that

the prison could legitimately categorize the documents as “contraband,” if they were, as

Jacobs alleges, affidavits that inmate Banks prepared for use in Jacobs’ lawsuit. An

affidavit must be prepared by the person having knowledge of the facts asserted therein.

Thus, they are in a different category from legal research or legal filings prepared by one

prisoner for another. It is difficult to imagine what the prison’s legitimate penological

interest would be in seizing and destroying the affidavits, absent any retaliatory motive.

Because Jacobs’ complaint states a prima facie case for retaliation, that claim should not

have been dismissed.

       Jacobs also appears to allege that the seizure and destruction of his documents

violated his First Amendment right of access to the courts. An inmate who alleges a

violation of the right of access to the courts must show an actual injury. Lewis v. Casey,

518 U.S. 343, 350 (1996). Actual injury can be demonstrated by showing that the

defendants’ actions resulted in the “loss or rejection of a legal claim.” Oliver v. Fauver,

118 F.3d 175, 177 (3d Cir.1997). The underlying lost or rejected legal claim must be

specifically identified and meritorious. Christopher v. Harbury, 536 U.S. 403, 414

(2002). As noted above, Jacobs alleged that because his legal documents were seized, he

lost parties from a lawsuit and was prevented from pursuing certain claims. These

allegations are not sufficiently specific to state a claim. However, when a district court



                                             8
    determines that a complaint is vulnerable to 12(b)(6) dismissal, the court must permit a

    curative amendment, regardless of whether the plaintiff seeks leave to amend, unless an

    amendment would be inequitable or futile. Alston, 363 F.3d at 235-36 (citing Grayson v.

    Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002)). It appears the District Court

    did not provide Jacobs with this opportunity. See Shane v. Fauver, 213 F.3d 113, 116 (3d

    Cir. 2000) (suggesting that “district judges expressly state . . . that the plaintiff has leave

    to amend within a specified period of time”).

           We express no opinion on the other legal claims raised in Jacobs’ complaint, as the

    District Court did not address them. We will allow the District Court to determine in the

    first instance, after giving Jacobs an opportunity to amend his complaint, whether such

    claims survive dismissal.

           For the foregoing reasons, we will vacate the order of the District Court and

    remand for further proceedings consistent with this opinion.2




       2
1       Although we denied Jacobs’ motion for appointment of counsel on appeal, the
2   District Court may wish to consider whether to appoint counsel on remand.

                                                   9
