PSM-207                                                   NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                  No. 11-1772
                                  ___________

          WALTER A. TORMASI, in his individual capacity and on behalf
               of Adavanced Data Solutions Corporation as its
                     Representative Ad Prosequendam,

                                                   Appellant

                                        v.

  GEORGE W. HAYMAN, Department of Corrections (DOC) Commissioner; JAMES
  BARBO, DOC Director of Division of Operations; MICHELLE RICCI, New Jersey
  State Prison (NJSP) Administrator; JEFFREY BELL, NJSP Associate Administrator;
JAMES DRUMM, NJSP Associate Administrator; DONALD MEE, JR., NJSP Associate
     Administrator; CHARLES WARREN, NJSP Associate Administrator; DEREK
   BUTLER, Special Investigations Division (SID) Investigator; DOLCE, (First Name
  Unknown), SID Investigator; HARRISON, (First Name Unknown), SID Investigator;
    MAGINNIS, (First Name Unknown), SID Investigator; VICTOR SIERRA, SID
             Investigator; VINCENT WOJCIECHOWICZ, SID Investigator
                       ____________________________________

                  On Appeal from the United States District Court
                           for the District of New Jersey
                      (D.C. Civil Action No. 08-cv-05886)
                     District Judge: Honorable Joel A. Pisano
                   ____________________________________

                Submitted Pursuant to Third Circuit LAR 34.1(a)
                               August 26, 2011
      Before: AMBRO, HARDIMAN and VAN ANTWERPEN, Circuit Judges

                        (Opinion filed: September 1, 2011)

                                  ___________

                                    OPINION
                                          ___________

PER CURIAM

           Walter A. Tormasi, a state prisoner proceeding pro se, appeals from the order of

the District Court granting the defendants‟ motions to dismiss. For the following reasons,

we will affirm.

           In December 2008, Tormasi filed a complaint pursuant to 42 U.S.C. § 1983 on

behalf of himself and Advanced Data Solutions Corporation (“ADS”), an “intellectual-

property holding company” for which Tormasi is the “sole shareholder” and “authorized

agent.” Among other allegations, Tormasi asserted that his constitutional rights were

violated when prison officials confiscated an unfiled patent application titled “Geometric

Optical Apparatus Featuring Antiglare Properties.”1 In the complaint, Tormasi stated that

he “desires to file provisional and non-provisional patent applications with [the United

States Patent and Trademark Office (“USPTO”)] based on the invention disclosed in his

. . . confiscated application,” “that the confiscated provisional application is [his] only

copy,” and that he is “unable to file patent applications with [USPTO] and thus unable to

initiate patent prosecution proceedings . . . .” Tormasi further alleged that he “intends to

assign his confiscated provisional application and any derivate patents to plaintiff ADS

. . . .”




           1
            According to Tormasi, the defendants also confiscated miscellaneous corporate
           paperwork, patent prosecution documents, several floppy diskettes, and
           correspondence between himself and his attorney. On appeal, however, Tormasi
           challenges only the confiscation of the unfiled patent application.
                                                2
       Before serving the defendants with a copy of the complaint, the District Court

dismissed without prejudice all claims asserted by Tormasi on behalf of ADS, noting that

a corporation may appear in federal court only through licensed counsel. With respect to

the allegations concerning the confiscation of Tormasi‟s patent application, the District

Court concluded that Tormasi failed to state a claim, as he lacked a constitutional right to

conduct a business while incarcerated. The District Court also rejected Tormasi‟s claims

that he had been denied access to the courts under the First Amendment, that he had been

deprived of property in violation of the Fifth Amendment, and that he had been denied

due process under the Fourteenth Amendment. With the District Court‟s permission,

Tormasi filed an amended complaint. He reasserted the claims from the initial complaint

and, for the first time, characterized the confiscation of the unfiled patent application as a

violation of his right to freedom of speech under the First Amendment. The defendants

were served with the amended complaint and filed a motion under Federal Rule of Civil

Procedure 12(b)(6). The District Court granted the motion, holding that Tormasi failed to

correct the deficiencies identified in the prior opinion. With respect to the newly-asserted

First Amendment claim, the District Court concluded that a prison regulation prohibiting

inmates from operating a business was valid. Tormasi appealed.

       We have appellate jurisdiction under 28 U.S.C. § 1291. We exercise plenary

review over the District Court‟s sua sponte dismissal and its order granting the motion to

dismiss for failure to state a claim. Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d

187, 190 (3d Cir. 2009); Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). “In

deciding a motion to dismiss, all well-pleaded allegations of the complaint must be taken

                                              3
as true and interpreted in the light most favorable to the plaintiffs, and all inferences must

be drawn in favor of them.” McTernan v. City of York, 577 F.3d 521, 526 (3d Cir. 2009)

(internal citation and quotation marks omitted). To withstand a Rule 12(b)(6) motion to

dismiss, “a complaint must contain sufficient factual matter, accepted as true, to „state a

claim to relief that is plausible on its face.‟” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

       In order to establish a § 1983 claim, a plaintiff must demonstrate that: (1) the

conduct complained of was committed by persons acting under color of state law; and (2)

the conduct violated a right, privilege, or immunity secured by the Constitution or laws of

the United States. Galena v. Leone, 638 F.3d 186, 196-97 (3d Cir. 2011). Section 1983

does not create any new substantive rights, but instead provides a remedy for the

violation of a federal constitutional or statutory right. Dique v. New Jersey State Police,

603 F.3d 181, 185 (3d Cir. 2010) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 816

(1985)). Tormasi states that he is raising only one issue on appeal: whether he

“possesses the right of access to the [USPTO], either under the „laws‟ of the United

States (namely, Title 35, U.S.C.) or the First, Fifth, or Fourteenth Amendments.”2




       2
        The defendants argue that the dismissal of the amended complaint should be
       affirmed because Tormasi is asserting the rights of ADS, which, because it is a
       corporation, must be represented by licensed counsel in federal court. Rowland v.
       California Men‟s Colony, 506 U.S. 194, 202 (1993) (stating that “a corporation
       may appear in the federal courts only through licensed counsel.”). We disagree.
       Tormasi brings this appeal on his own behalf and challenges the confiscation of
       his unfiled patent application, which had not been assigned to ADS.

                                              4
       Tormasi claims that the confiscation of his patent application interfered with his

statutory right to file to apply for a patent and violated his First Amendment right to free

speech.3 Prisoners have a First Amendment right to communicate with others outside the

prison. See Thornburgh v. Abbott, 490 U.S. 401, 407 (1989). It is well-recognized,

however, that the rights of prisoners “must be exercised with due regard for the

„inordinately difficult undertaking‟ that is modern prison administration.” Id. (quoting

Turner v. Safley, 482 U.S. 78, 85 (1987)). Thus, prison authorities may regulate inmate

speech so long as the regulations are reasonably related to legitimate penological

interests. See Turner, 482 U.S. at 89. Indeed, the fact of incarceration and the valid

penological objectives of deterrence of crime, rehabilitation of prisoners, and institutional

security justify limitations on the exercise of constitutional rights by inmates. See

DeHart v. Horn, 227 F.3d 47, 50-51 (3d Cir. 2000) (en banc).

       Here, the defendants confiscated Tormasi‟s patent application pursuant to a prison

regulation that prohibited “commencing or operating a business or group for profit or

commencing or operating a nonprofit enterprise without the approval of the



       3
         Tormasi also cited his First Amendment right to petition the government for
       redress of his grievances, which includes as an aspect a right of access to the
       courts. Woodford v. Ngo, 548 U.S. 81, 122 (2006) (Stevens, J., dissenting). The
       right of access to the courts, however, is limited to cases in which inmates “attack
       their sentences, directly or collaterally, and . . . challenge the conditions of their
       confinement. Impairment of any other litigating capacity is simply one of the
       incidental (and perfectly constitutional) consequences of conviction and
       incarceration.” Lewis v. Casey, 518 U.S. 343, 355 (1996). Because Tormasi‟s
       complaints about his ability to pursue patent matters do not fall into one of these
       categories, we agree that he failed to state an access to the courts claims. Cf.
       Simmons v. Sacramento Cnty. Super. Ct., 318 F.3d 1156, 1159-60 (9th Cir. 2003)
                                              5
Administrator.” N.J.A.C. 10A:4-4.1(.705). Tormasi does not contend that he has a

constitutional right to conduct business activities while incarcerated. See French v.

Butterworth, 614 F.2d 23, 24 (1st Cir. 1980) (rejecting prisoner‟s claim that he had a

constitutional right to engage in business activities). Nor does Tormasi allege that the

prison regulation lacks a reasonable relation to legitimate penological interests. Abu-

Jamal v. Price, 154 F.3d 128, 135 (3d Cir. 1998) (stating that “[t]here are no doubt many

businesses or professions, which if practiced within the prison, would necessarily burden

prison officials or other inmates.”). Instead, he suggests that his patent application does

not implicate business activities. While we generally agree that the submission of a

patent application does not involve a business activity in all circumstances, see Jerry-El

v. Beard, No. 10-3031, 2011 WL 989856, at *2 (3d Cir. Mar. 22, 2011) (stating that “it

does not appear that exercising [the] right [to register a copyright] necessarily constitutes

engaging in a business activity”), the record in this case indicates that Tormasi‟s conduct

falls within the ambit of that prohibited by the regulation.

       In his complaint, Tormasi explained that he had previously filed with the USPTO

two patent applications bearing the title “striping data simultaneously across multiple

platter services.” He then assigned to ADS all his interest in the patent applications. In

2008, the USPTO issued a patent, which lists Tormasi as the inventor and ADS as the

assignee. Based on the confiscation of paperwork pertaining to the patent and ADS,

Tormasi alleged that he was “unable to directly or indirectly benefit from his intellectual-


       (explaining that “a prisoner has no constitutional right of access to the courts to
       litigate an unrelated civil [personal injury] claim”).
                                              6
property assets, either by selling all or part of ADS; by exclusively or non-exclusively

licensing [the] patent to others; by using ADS or [the] patent as collateral for obtaining

personal loans or standby letters of credit; or by engaging in other monetization

transactions involving ADS or its intellectual-property assets.” Notably, Tormasi stated

that he “intends to assign his confiscated provisional application and any derivate patents

to plaintiff ADS . . . .” Under these circumstances, we conclude that the District Court

did not err in holding that Tormasi‟s intentions regarding the unfiled patent application

qualified under the regulation as “commencing or operating a business or group for

profit.” Accordingly, we conclude that the confiscation of the unfiled patent application

did not violate his statutory or constitutional rights.

       Tormasi also alleges that the Fifth and Fourteenth Amendments provide him with

“the right of access to [the] USPTO.” We disagree, as neither Amendment provides a

“right of access” in these circumstances. Those Amendments do, however, protect

deprivations of property, although “determining what constitutes the impairment of a

protected property interest for purposes of due process . . . is a distinct inquiry from

determining what constitutes a taking for purposes of the Takings Clause. Burns v. PA

Dep‟t of Corr., 544 F.3d 279, 285 n.3 (3d Cir. 2008). The Fifth Amendment, made

applicable to the states through the Fourteenth Amendment, proscribes the taking of

private property for public use without just compensation. U.S. Const. amend. V, XIV;

Cowell v. Palmer Twp., 263 F.3d 286, 290 (3d Cir. 2001). Because Tormasi‟s property

was confiscated as contraband pursuant to New Jersey statute and regulation, he is not

entitled to compensation pursuant to the Takings Clause of the Fifth Amendment. See

                                               7
Savko v. Rollins, 749 F. Supp. 1403, 1412-14 (D. Md. 1990) (holding that, under prison

regulation, “the State may confiscate property not for the beneficial use of the public, but

rather as a quintessential police power function: the orderly and secure operation of the

State‟s prisons”). In addition, Tormasi failed to state a claim for a deprivation of

property without due process of law under the Fourteenth Amendment because an

adequate post-deprivation remedy for the loss exists. Hudson v. Palmer, 468 U.S. 517,

533 (1984); see also Tillman v. Lebanon Cnty. Corr. Facility, 221 F.3d 410, 422 (3d Cir.

2000) (holding that prison‟s grievance program and internal review provide an adequate

post-deprivation remedy to satisfy due process).

       For the reasons given, we will affirm the judgment of the District Court.




                                              8
