                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-10-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4754




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Recommended Citation
"Gordon v. Morton" (2005). 2005 Decisions. Paper 1223.
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CPS-168                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     NO. 04-4754
                                  ________________

                               STEVEN R. GORDON,
                                                       Appellant
                                          v.

WILLIS MORTON, WARDEN; JOHN DOE(S), CORRECTIONAL OFFICER(S) AT BUCKS
COUNTY CORRECTIONAL FACILITY; J. W. BAILIE; M. A. POULSON; C. C. BURNS; H.
                             C. LIVERMAN
               _______________________________________

                    On Appeal From the United States District Court
                        For the Eastern District of Pennsylvania
                               (D.C. Civ. No. 03-cv-04060)
                      District Judge: Honorable Harvey Bartle, III
                    _______________________________________

               Submitted Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                  March 10, 2005

             BEFORE: ALITO, McKEE and AMBRO, CIRCUIT JUDGES

                               (Filed: May 10, 2005)
                             _______________________

                                    OPINION
                             _______________________

PER CURIAM

      Appellant Steven Gordon appeals from the District Court’s orders granting

Defendants’ motions for summary judgment and denying the appointment of counsel.

Gordon filed a complaint, which the District Court presumed was pursuant to 42 U.S.C. §
1983, seeking monetary damages for the alleged denial of access to the courts in violation

of the First Amendment. Because no substantial question is presented, L.A.R. 27.4, we

will summarily affirm the District Court’s order.

       On June 13, 2002, Gordon was transferred to Bucks County Correctional Facility

to await a Post Conviction Relief Act (PCRA) hearing scheduled for June 17th. Gordon

claims correctional officers Burns, Poulson, and Bailie confiscated his legal materials,

and that defendants Morton and Liverman later acquiesced to the conduct. On the

morning of the hearing, Gordon requested his legal materials, but they were not supplied.

The hearing still took place as scheduled.

       On June 22, 2002, Gordon filed an inmate request form for the return of the

material among other items. Warden Morton responded, yet failed to address that aspect

of the request. On July 2, 2003, the materials were returned. Gordon’s PCRA petition

was subsequently denied, but the Superior Court remanded for a new hearing because his

PCRA counsel was ineffective. Upon rehearing, the PCRA Court denied relief. Gordon

did not appeal.

       Meanwhile, Gordon brought a § 1983 claim in the District Court alleging a denial

of access to the courts. The District Court granted the Defendants’ motions for summary

judgment. It held that Gordon failed to show actual injury with respect to the claim

against the correctional officers and could not show supervisory liability with respect to

Morton and Liverman. Gordon then filed this appeal.



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       We exercise plenary review over a District Court’s grant of summary judgment.

Oliver v. Fauver, 118 F.3d 175, 177 (3d Cir. 1997). A claimant seeking damages for the

denial of access to the courts must “demonstrate that the alleged” deprivation of legal

material “hindered his efforts to pursue a legal claim.” Lewis v. Casey, 518 U.S. 343,

351 (1996). To succeed, Lewis does not require that a claim would have been successful,

see, e.g., Walters v. Edgar, 163 F.3d 430, 434 (7th Cir. 1998), but merely requires the

claimant to show that the deprivation led to an actual injury “such as the loss or rejection

of a legal claim.” See Oliver, 118 F.3d at 177.

       The actual injury requirement is derived from the constitutional principle of

standing. Lewis, 518 U.S. at 349. In this context, a claim premised upon an argument

that the alleged deprivation hindered the presentation of a frivolous claim is not sufficient

to entitle relief. See id. at 350 (comparing a similar situation with that of a healthy inmate

who is denied access to medical care); Walters, 163 F.3d at 434-35. See also Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992) (requiring injury to be actual or

imminent, not hypothetical or conjectural).

       To the extent Gordon implies possible injury, the second PCRA Court held that

none of Gordon’s claims were cognizable under the PCRA. See Commonwealth v.

Gordon, No. 2000-3646, slip op. at 2 (Pa. C. Dec. 10 2003). Gordon does not argue that

he desired to present different or additional claims at his first PCRA hearing. Because we

do not generally second guess state court decisions interpreting matters of state law, see



                                              3
Michigan v. Long, 463 U.S. 1032, 1040 (1983), Gordon has not sufficiently demonstrated

actual injury to establish his claim against the corrections officers. Additionally, because

Gordon fails to demonstrate he suffered a constitutional violation, he cannot satisfy any

theory of supervisory liability. See A.M. ex rel. J.M.K. v. v. Luzerne County Juvenile

Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004).

       Additionally, the District Court did not abuse its discretion in denying Gordon’s

motion for the appointment of counsel. See Parham v. Johnson, 126 F.3d 454, 457 (3d

Cir. 1997). The District Court initially granted Gordon’s motion on September 8, 2003,

but denied the motion a year later after failing to find counsel willing to accept the

appointment. The District Court cannot require counsel to represent an indigent claimant.

See Tabron v. Grace, 6 F.3d 147, 153 n.1 (3d Cir. 1993). Further, because Gordon’s

claim is meritless, the District Court did not abuse its discretion in eventually denying the

motion and the order is affirmed. See id. at 155 (stating that a threshold inquiry is

whether the claim has merit).

       For the foregoing reasons, no substantial question is presented and we will affirm

the order of the District Court granting the Defendants’ motions for summary judgment.

Appellant’s motion for appointment of counsel on appeal is denied.




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