                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-3-2009

Jeffrey Walker v. Michael Zenk
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1570




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                                                        NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT


                               No. 08-1570


                         JEFFREY A. WALKER,
                                       Appellant

                                     v.

WARDEN MICHAEL A. ZENK; CAPT. K. BITTENBENDER; DAVID M. RARDIN;
KATHLEEN HAWK-SAWYER; Lt. SANCHEZ; Lt. LITCHARD; GEORGE WATSON;
                   TERRY BAM; ROBIN GREGG




              On Appeal from the United States District Court
                  for the Middle District of Pennsylvania
                  (D.C. Civil Action No. 4-01-cv-01644)
               District Judge: Honorable John E. Jones, III
               ____________________________________

              Submitted Pursuant to Third Circuit LAR 34.1(a)
                             March 26, 2009

            Before: BARRY, SMITH and GARTH, Circuit Judges

                       (Opinion filed: April 3, 2009)

                               ___________

                                OPINION
                               ___________
PER CURIAM

       Jeffrey A. Walker, a federal prisoner, filed a pro se Bivens 1 complaint in August

2001. Naming nine federal Bureau of Prisons (“BOP”) employees as defendants, he

advanced several causes of action. In particular, he alleged that Appellees’ confiscation

of his receipts and legal materials denied him access to the courts, apparently with respect

to an underlying Federal Tort Claims Act (“FTCA”) action for seizure and ownership of

valuable personal property. He further claimed that Appellees violated his due process

rights by planting a weapon in the legal documents he kept in his cell and providing false

information at his prison disciplinary hearing.

       Initially, although acknowledging that the complaint advanced two unexhausted

claims, the District Court, ruling on the BOP employees’ motion, dismissed the complaint

in its entirety pursuant to the “total exhaustion” rule. Walker appealed. We held

Walker’s earlier appeal c.a.v. pending the Supreme Court’s then-imminent consideration

of the “total exhaustion” rule. After the Supreme Court issued its ruling in Jones v. Bock,

549 U.S. 199 (2007), we vacated the District Court’s order and remanded for further

proceedings. Our accompanying opinion noted that “[t]he Supreme Court held that an

inmate’s complaint under the PLRA should not be dismissed when the inmate exhausted

his administrative remedies for some of his claims, but not all.” We stated that the



  1
   Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388
(1971), is the federal counterpart to 42 U.S.C. § 1983. See Egervary v. Young, 366 F.3d
238, 246 (3d Cir. 2004).

                                             2
District Court therefore “should have considered the claims that were exhausted and

dismissed only the unexhausted claims.”

         On remand, the District Court ordered Appellees to respond to Walker’s exhausted

confiscation and disciplinary hearing claims. They did so by filing a motion to dismiss

and for summary judgment. Walker also moved for summary judgment and filed other

motions for various forms of relief, including both joinder and leave to amend his

complaint in order to add two more BOP employees as new defendants. The Magistrate

Judge denied his motion to amend, and the District Court affirmed. The Magistrate Judge

then addressed the remaining motions in a lengthy report and recommendation. He

recommended that the motion for joinder be denied and the cross-motions for summary

judgment be denied as premature. He also rejected Walker’s contentions that the doctrine

of res judicata somehow barred Appellees from seeking dismissal pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure. The Magistrate Judge went on to

recommend that the claims against five individual Appellees be dismissed for failure to

allege personal involvement. He further believed that the due process claim arising out of

the disciplinary hearing was barred by the Heck 2 doctrine because Walker lost 41 days of

good conduct time as a disciplinary sanction and a favorable ruling as to the hearing

would thereby imply that his sanction was invalid. Because one Appellee’s personal

involvement was limited to the due process claim, the Magistrate Judge recommended



  2
      Heck v. Humphrey, 512 U.S. 477 (1994).

                                             3
dismissing him from the case as well. However, the Magistrate Judge also recommended

that Appellees’ motion to dismiss be denied as to Walker’s confiscation claim against the

remaining three Appellees because Walker sufficiently alleged an actual injury or adverse

action regarding his access to the courts. The Magistrate Judge did recommend the

dismissal of any conspiracy claim arising out of the confiscation as well as the dismissal

of Walker’s claims for monetary damages against Appellees in their official capacities.

       Both Walker and Appellees filed objections to the report and recommendation. On

February 7, 2008, the District Court generally accepted the Magistrate Judge’s

recommendations, supplemented by its own analysis. Nevertheless, the District Court

disagreed with the Magistrate Judge as to whether Walker’s complaint adequately alleged

a cognizable claim for denial of access to the courts. The District Court instead agreed

with Appellees’ argument that Walker failed to meet the “pleading standards” for alleging

an actual injury resulting from the confiscation of his legal documents. The District

Court added that, even if the claim satisfied the pleading requirements, it must still be

dismissed because the alleged frustration of an FTCA or other tort suit did not implicate a

prisoner’s constitutional right to judicial access. Finding that amendment would be futile,

the District Court dismissed the complaint with prejudice.

       Walker appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise

plenary review over the District Court’s order granting the motion to dismiss. See Nami

v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). We consider the District Court’s decision to



                                              4
deny leave to amend for abuse of discretion. See Grayson v. Mayview State Hosp., 293

F.3d 103, 108 (3d Cir. 2002).

       First, we note that Walker, conceding that the District Court’s ruling under Heck

was correct, no longer pursues his due process claim arising out of the disciplinary

hearing.3 Appellant’s Brief 25. We agree with Walker that the District Court properly

rejected his disciplinary hearing claim pursuant to the Heck doctrine because his loss of

good conduct time affects the duration of confinement. See, e.g., Edwards v. Balisok,

520 U.S. 641, 646-48 (1997).

       However, we do not agree with Walker that the District Court erred by considering

the motion to dismiss at all and disallowing his claims to proceed to trial in light of our

earlier ruling in his case. Contrary to his assertions, neither principles of res judicata nor

the law of the case doctrine precluded the District Court’s consideration of the motion to

dismiss. The first round of rulings from the Magistrate Judge, District Court, and our

Court were concerned with the question of exhaustion and whether a “total exhaustion”

rule existed and barred Walker’s suit. No court previously addressed Appellees’

alternative grounds for relief, so there was no previous final decision on the merits for the

purposes of res judicata, see Selkridge v. United of Omaha Life Ins. Co., 360 F.3d 155,



  3
    Also, Walker does not raise the issue of the dismissal of the complaint against some
defendants for his failure to allege their personal involvement in the actions precipitating
his due process and access to the courts claims. Accordingly, this issue, like any other
issue Walker did not include in his opening brief, is waived. See Kost v. Kozakiewicz, 1
F.3d 176, 182 (3d Cir. 1993)

                                               5
172 (3d Cir. 2004), or a previous decision on one or more issues in the suit that served as

relevant law of the case, see Hamilton v. Leavy, 322 F.3d 776, 786-87 (3d Cir. 2003).

Appellees properly raised their alternative grounds for dismissal on remand, and the

District Court properly chose to consider them. See also 28 U.S.C. § 1915(e)(2)(B).

       Walker next seeks to assign error to the District Court for dismissing, on sovereign

immunity grounds, his claims against BOP employees in their individual capacities.

However, the District Court applied the sovereign immunity bar to the claims Walker

brought against the BOP employees in their official capacities. The ruling was proper.

See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 72 (2001); FDIC v. Meyer, 510 U.S. 471,

484 (1994); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64 (1989).

       Walker also argues that the District Court erred in ruling that he did not allege

actual injury to meet the “pleading standards” for a claim of denial of access to the courts.

To state his backward-looking access claim, Walker had to allege the underlying cause of

action and its lost remedy as well as the official acts that frustrated his litigation.

See Christopher v. Harbury, 536 U.S. 403, 413-18 (2002). The District Court concluded

that Walker did not sufficiently describe his claim or its frustration. However, Walker

did allege that Appellees’ confiscation of his receipts and legal materials rendered him

unable to prove his allegations or recover $300,000 in an FTCA action for the seizure and

ownership of valuable personal property. Nonetheless, as the District Court also noted,

because Walker is a prisoner, “the injury requirement is not satisfied by just any type of



                                                6
frustrated legal claim.” Lewis v. Casey, 518 U.S. 343, 354 (1996). A prisoner must

allege that official acts thwarted his non-frivolous challenge to his conviction or prison

conditions. See id. at 356. Walker’s tort claim falls into neither category of legal

challenges.4 Accordingly, he did not state a claim for denial of access to the courts. See

also Oliver v. Fauver, 118 F.3d 117, 177-78 (3d Cir. 1997). The District Court did not err

in dismissing his access claim.

       We also hold that the District Court did not abuse its discretion in denying Walker

leave to amend his complaint.5 Leave to amend should be granted unless amendment is

futile or inequitable. See Grayson, 293 F.3d at 106. Amendment is futile if the amended

complaint cannot withstand a renewed motion to dismiss. See Jablonski v. Pan American

World Airways, Inc., 863 F.2d 289, 292 (3d Cir. 1988). Undue delay, bad faith, and

dilatory motive on the part of the plaintiff and prejudice to the defendant suggest inequity.

See Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). Although Walker argues the

contrary, there appears to be no way for him to cure the defects in his access claim. The



  4
   From Walker’s complaint, it is unclear if Walker brought his claim pursuant to the
FTCA. He described it variously in documents in the District Court (and for the first time
on appeal, Walker calls it a § 1983 action against state actors for illegal conversion of a
property right). However, it is clear from the complaint and related documents that his
action for the recovery of valuable property is not a suit about prison conditions or a
challenge to his conviction.
  5
    Walker, who argues that he should have been permitted to amend his complaint to
cure any deficiencies, also claims that the District Court violated his right to due process
in denying leave to amend. Upon review, we conclude that the District Court did not
deprive Walker of any due process right.

                                              7
claim against BOP employees in their official capacity would remain barred by sovereign

immunity; and any interference with his tort claim could not be converted into a past

injury that satisfies the test set forth in Lewis.

         To the extent that Walker challenges the order denying his motion to amend, we

conclude that the District Court did not abuse its discretion in issuing that order. As the

District Court noted, Walker sought to raise new claims in 2007 that he could have

included in the complaint at the time of its filing in 2001. He also sought to raise claims

previously held to be unexhausted.6 Walker also included allegations in his proposed

amendment that would not survive a motion to dismiss.7

         For the reasons given, the District Court properly dismissed Walker’s complaint

and denied him leave to amend. We will affirm the District Court’s judgment.




  6
      Walker does not challenge the earlier ruling that some of his claims were unexhausted.


  7
    For instance, Walker wished to add two new defendants whom he accused of
obstructing his access to the courts by “committing fraud” and intentionally mishandling
his grievance relating to the confiscation of his legal documents. However, Walker
cannot show the requisite injury for his access claim. The District Court, noting problems
on both sides of the prison grievance process in Walker’s case, concluded that Walker
had exhausted his available remedies in relation to the confiscation claim, and ruled on it
on the merits.

                                                8
