                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-21-2007

Gordon v. Lappin
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4154




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Recommended Citation
"Gordon v. Lappin" (2007). 2007 Decisions. Paper 1080.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1080


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CLD-198                                                     NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                    NO. 06-4154
                                 ________________

                             MICHAEL LEE GORDON,

                                           Appellant

                                             v.

                    HARLEY LAPPIN, Director; M.V. PUGH;
           TROY WILLIAMSON, Warden; M.J. ORN, Assoc. Warden;
    CHRISTOPHER M. ANGELINI; B. ALBERTSON, Inmate Systems Officer;
    ROBERT L. COFFEE, Education Specialist; CHRIS JOHNSON, Education
     Specialist; ROBERT F. WOLEVER, Unit Manager; THAD J. HUEBLER,
      Case Manager; EARL F. FISHER, Counselor; DONN C. TROTTMAN,
    Unit Manager; JASON B. BIRDSALL, Case Manager; JONATHAN GRILL,
     Counselor; JEFFREY W. SIMPLER, Property Officer; WAYNE M. LAPP,
           Mr. Property Officer; DANIEL P. WOMELDORF, S.H.U. Lt.;
   UNITED STATES OF AMERICA; NORBAL VAZQUEZ, Executive Assistant;
                           G. YOCUM; J. MCCLUSKY
                   ____________________________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                              (D.C. Civ. No. 05-CV-00457)
                      District Judge: Honorable William J. Nealon
                    _______________________________________


           Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                    April 19, 2007

          Before:    RENDELL, SMITH AND JORDAN, CIRCUIT JUDGES

                                 (Filed May 21, 2007)
                                 _______________________

                                         OPINION
                                 _______________________

PER CURIAM

         Michael Lee Gordon appeals from an order of the United States District Court for

the Middle District of Pennsylvania, granting summary judgment to the defendants in his

civil rights case and dismissing his complaint. We will dismiss the appeal pursuant to 28

U.S.C. § 1915(e)(2)(B).

         Gordon filed a complaint in the United States District Court for the District of

Columbia, which was transferred to the Middle District of Pennsylvania. The Court

granted Gordon’s motion to amend the complaint and filed his amended complaint on

April 29, 2005.1 That complaint alleged that he was denied access to the courts, and that

prison officials retaliated against him because he had complained about being denied

access to the courts. The Defendants filed a motion to dismiss, or in the alternative, for

summary judgment.

         A violation of the First Amendment right of access to the courts is only established

where a litigant shows that he was actually injured by the alleged denial of access. The

actual injury requirement is a constitutional prerequisite to suit. Lewis v. Casey, 518 U.S.

343, 351 (1996); Christopher v. Harbury, 536 U.S. 403, 415 (2002) (explaining that the




   1
       The Court denied a later motion to amend the complaint on August 30, 2005.

                                               2
constitutional right of access is “ancillary to the underlying claim, without which a

plaintiff cannot have suffered injury by being shut out of court”). An actual injury is

shown only where a non- frivolous, arguable claim is lost. Christopher, 536 U.S. at 415.

To state a valid retaliation claim, a prisoner must allege: “(1) constitutionally protected

conduct; (2) an adverse action by prison officials sufficient to deter a person of ordinary

firmness from exercising his constitutional rights, and (3) a causal link between the

exercise of his constitutional rights and the adverse action taken against him.”). See

Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003).

       The District Court here properly found that Gordon could not survive summary

judgment on either his access to the courts claims or his retaliation claim. The Court

determined that to the extent Gordon complained that he was denied access to the courts

with regard to two civil actions, summary judgment was appropriate because he failed to

file a brief in opposition to the defendants’ motion with respect to those claims. The

Court determined that with respect to Gordon’s two claims that he was denied access to

the courts when he missed a court date relating to his direct criminal appeal and when he

missed a filing deadline for filing a post-conviction petition, the allegations were

sufficient to survive a motion to dismiss, but did not survive summary judgment. The

Court noted that Gordon did not submit any documentation relating to his direct criminal

appeal and thus failed to support his contention that he missed a filing deadline in his

direct appeal. Similarly, although Gordon submitted a court order denying his second


                                              3
post-conviction petition as untimely, he did not submit a court order showing that his first

post-conviction petition was untimely, as he alleged in his complaint. Thus, the Court

found that defendants were entitled to summary judgment on the access to the courts

claims.

       With regard to the retaliation claim, the Court found that although Gordon had

satisfied the first prong of a retaliation claim by claiming that he had engaged in protected

conduct (his right to access the courts), he did not satisfy the second and third prongs.

The Court found that Gordon could not show adverse action; i.e., that he was deterred

from exercising his right of access to the courts, as he had 31 civil actions pending in the

Middle District alone at the time of the District Court’s opinion. The Court also found

that he failed to show that there was any causal link between his complaints regarding

access to the courts and the alleged adverse actions (being denied correspondence with

other inmates, access to state law books, legal phone calls, supplies, etc.). The Court

therefore denied summary judgment on the retaliation claim.

       After reviewing the District Court record, including Gordon’s complaint, the

defendants’ summary judgment motion and Gordon’s objections to the Magistrate Judge’s

Report and Recommendation, we conclude that Gordon’s appeal fails to state a claim on

which relief may be granted. We therefore will dismiss the appeal pursuant to 28 U.S.C.

§ 1915(e)(2)(B).




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