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


4-27-2009

Allen Kelly v. York Cty Prison
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4512




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"Allen Kelly v. York Cty Prison" (2009). 2009 Decisions. Paper 1473.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1473


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BLD-161                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 08-4512
                                      ___________

                                    ALLEN KELLY,
                                                       Appellant

                                            v.

                             YORK COUNTY PRISON
                      ____________________________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                          (D.C. Civil Action No. 08-cv-1813)
                    District Judge: Honorable James F. McClure, Jr.
                     ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    April 16, 2009

              Before: McKEE, FISHER and CHAGARES, Circuit Judges

                                 (Filed: April 27, 2009 )
                                      ___________

                                       OPINION
                                      ___________

PER CURIAM

      Allen Kelly, a Pennsylvania state prisoner proceeding pro se, appeals from the

District Court’s dismissal of his complaint pursuant to 28 U.S.C. § 1915(e). For the

reasons stated below, we will dismiss this appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).
       Kelly filed a complaint in the United States District Court for the Middle District

of Pennsylvania alleging that the York County Prison violated his civil rights when it:

(1) denied him free photocopies of legal documents relating to his criminal proceedings as

well as well as a complaint he initiated before the Disciplinary Board of the Pennsylvania

Supreme Court; (2) refused to provide him with sufficient paper and envelopes; and (3)

failed to place a photocopying machine in the prison library as well as stock the library

with sufficient paper. The District Court granted Kelly’s motion to proceed in forma

pauperis and later dismissed his complaint pursuant to 28 U.S.C. § 1915(e).

                                             II.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Because

Kelly has been granted in forma pauperis status pursuant to 28 U.S.C. § 1915, we review

this appeal for possible dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). An appeal may

be dismissed if it has no arguable basis in law or fact. See Neitzke v. Williams, 490 U.S.

319, 325 (1989).

                                            III.

       The District Court correctly determined that Kelly’s claim that his constitutional

rights were violated when he was denied free photocopies is without merit.1 Prisoners do


       1
         In addition to dismissing Kelly’s claims against the prison on the merits, the
District Court, citing Fischer v. Cahill, 474 F.2d 991, 992 (3d Cir. 1973), also determined
that the prison was immune from Kelly’s lawsuit under the Eleventh Amendment because
it is not a “person” within the meaning of § 1983. However, because we presume Kelly
could have amended his complaint to name a proper, individual defendant, we review the
appropriateness of the District Court’s dismissal of Kelly’s claims on the merits.

                                             2
not have a right to free photocopies for use in lawsuits. See Johnson v. Moore, 948 F.2d

517, 521 (9th Cir. 1991); see also Harrell v. Keohane, 621 F.2d 1059, 1061 (10th Cir.

1980). In addition, while inmates have a constitutional right of access to the courts,

which, in some situations, may implicate prison law libraries, see Bounds v. Smith, 430

U.S. 817, 821 (1977), an inmate must show that he was actually injured by the alleged

denial of access in order to establish a First Amendment violation. Lewis v. Casey, 518

U.S. 343, 350 (1996). Such an injury would occur, for example, if an inmate “was so

stymied by inadequacies of the law library that he was unable even to file a complaint.”

Id. at 351; see also Oliver v. Fauver, 118 F.3d 175, 177 (3d Cir. 1997) (defendants’

actions resulted in the “loss or rejection of a legal claim.”) In his complaint, Kelly

acknowledged that he is given a supply of paper and envelopes each month. Furthermore,

he does not claim that he was denied use of the prison law library or that he has been

unable to meet any court-imposed deadlines as a result of the library’s alleged lack of

amenities.

       Accordingly, for the reasons given, we will dismiss this appeal pursuant to 28

U.S.C. § 1915(e)(2)(B)(I).




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