                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-10-1997

Oliver v. Fauver
Precedential or Non-Precedential:

Docket 96-5652




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Recommended Citation
"Oliver v. Fauver" (1997). 1997 Decisions. Paper 156.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/156


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Filed July 10, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-5652

LORENZO OLIVER,
Appellant,

v.

WILLIAM FAUVER, Commissioner of Department of
Corrections; WILLIAM PLANTIER, Superintendent of
A.D.T.C.; SGT. THOMAS MORAN; SCO. BARRAGUS,
Mailroom Officer; SGT. BUCHANAN, They are all being
sued in their official and individual capacity

APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

(D.C. Civil No. 95-06173)

Submitted Under Third Circuit LAR 34.1(a)
April 9, 1997

BEFORE: GREENBERG, LEWIS and MCKEE,
Circuit Judges

(Filed July 10, 1997)
Lorenzo Oliver, #221344
Trenton State Prison
CN 861
Trenton, NJ 08625

Pro Se Appellant

Andrew Sapolnick
Office of the Attorney General
of New Jersey
Division of Law
Richard J. Hughes Justice Complex,
CN 112
Trenton, NJ 08625

Attorney for Appellees

OPINION OF THE COURT

LEWIS, Circuit Judge.

Appellant, Lorenzo Oliver, is an inmate at the Adult
Diagnostic & Treatment Center at Avenel, New Jersey
("ADTC"). Oliver, acting pro se, appeals from an order of the
district court granting the summary judgment motions of
Appellees, the Commissioner of the New Jersey Department
of Corrections, the Superintendent of ADTC and various
individual correction officers at ADTC (collectively
"Defendants").1 Oliver sought relief against the Defendants
under 42 U.S.C. § 1983, alleging equal protection and due
process violations and deprivation of access to the courts.
We will affirm.

I.

Oliver's section 1983 claim arises from an incident
among Oliver, an ADTC corrections officer and an orange.
_________________________________________________________________

1. The Defendants are William Fauver, Commissioner of the New Jersey
Department of Corrections; William Plantier, Superintendent of ADTC;
Corrections Sergeant Thomas Moran; Corrections Sergeant Kathy
Buchanan; and Senior Corrections Officer Daniel Barajas.

                   2
On September 9, 1995, Sergeant Thomas Moran saw Oliver
approaching the outdoor recreational area of the ADTC with
an orange in his hand. Moran instructed Oliver to throw
the orange away or take it back to his cell. Oliver
responded, "You've got to be f---ing kidding me" and
proceeded into the yard. Oliver then apparently became
loud and boisterous and threw the orange into the garbage.
Moran ordered Oliver to retrieve the orange from the trash
and take it up to his cell. When Oliver refused to comply
with this order, Moran charged him with refusing to obey
an order in violation of New Jersey Administrative Code
10A:4-4.1.256.

A hearing officer found Oliver guilty on this charge and
sanctioned him to a 30-day loss of recreational privileges.
Oliver appealed the guilty finding through the appropriate
state appellate channels, alleging a due process violation
and a claim that Moran had violated his civil rights. The
New Jersey Superior Court, Appellate Division, upheld the
hearing officer's decision.

On December 4, 1995, Oliver filed a complaint in the
United States District Court for the District of New Jersey,
again alleging various civil rights violations. Specifically,
Oliver alleged that Sergeant Moran had discriminated
against him on the basis of race when Moran issued the
disciplinary charge against Oliver for disobeying an order.2
Oliver also alleged that officers at ADTC had on three
separate occasions returned his outgoing mail to him
without mailing it and on at least one occasion had opened
his outgoing mail.3 In his complaint, Oliver did not allege
any actual injury caused by the Defendants' alleged
interference with his mail.
_________________________________________________________________

2. Oliver, an African-American prisoner, claimed that Moran had violated
his "right to equal protection . . . by ordering him to go into a garbage
can and get an orange out to degrade him [in front of white prisoners]
because of the color of his skin."

3. The outgoing mail was addressed to the Clerk of the New Jersey
Appellate Court, the state Attorney General, and the Commissioner of
the Department of Corrections. The mail allegedly contained a notice of
appeal and a brief relating to the orange incident.

                   3
The Defendants moved for partial summary judgment on
the claims arising directly from the orange incident, arguing
that those claims were barred by the doctrine of res
judicata. The district court granted the Defendants' motion,
finding that the New Jersey courts had already adjudicated
Oliver's due process and equal protection claims. Oliver v.
Fauver, Civ. No. 95-6173, slip op. at 7-8 (D.N.J. Aug. 16,
1996) ("[I]t is evident that [Oliver] seeks to relitigate a claim
that has been finally adjudicated in the state court
system.").

Soon after the district court's entry of summary judgment
in favor of the Defendants, they filed another motion for
summary judgment on Oliver's remaining claim relating to
the Defendants' alleged interference with his access to the
courts. Again, the district court granted the Defendants'
motion. Relying on the Supreme Court's recent opinion in
Lewis v. Casey, 116 S. Ct. 2174, 2179 (1996), the district
court held that Oliver could not prevail on his access-to-
the-courts claim because he had failed to allege actual
injury caused by the alleged interference. Oliver v. Fauver,
Civ. No. 95-6173, letter op. at 2 (D.N.J. Sept. 13, 1996).
The court further noted that, notwithstanding Oliver's
failure to allege actual injury, the record indicated that no
such injury occurred -- i.e., that Oliver's mail did, in fact,
eventually reach its intended destination. Id.

The district court had jurisdiction under 28 U.S.C.
§ 1331. We have jurisdiction under 28 U.S.C. § 1291.

II.

We exercise plenary review over a district court's grant of
summary judgment. Small v. Lehman, 98 F.3d 762, 765 (3d
Cir. 1996).

Our primary concern on appeal is whether the district
court properly concluded that Oliver was required to show
that he was actually injured by the Defendants' alleged
interference with his access to the courts.4
_________________________________________________________________

4. We will affirm without discussion the district court's grant of summary
judgment in favor of the Defendants on the due process and equal
protection claims. We agree that these claims are barred by the doctrine
of res judicata.

                     4
Oliver relies on Bieregu v. Reno, 59 F.3d 1445 (3d Cir.
1995), to argue that actual injury need not be alleged when
the defendant's conduct deprives an inmate of a "central"
aspect of the right to court access. In Bieregu, we set forth
a two-prong standard for analyzing denial of court access
claims. Bieregu claimed that prison officials had violated
his right of access to the courts by repeatedly opening his
legal mail outside of his presence. Id. at 1448. In rejecting
the government's argument that Bieregu was required to
show that he was "actually denied" access to the courts, we
distinguished "ancillary" aspects of court access from
"central" aspects of court access.5 We noted that while
claims stemming from the denial of "ancillary" aspects
required actual injury, claims arising from the denial of
"central" aspects did not. Id. at 1455. Finally, we concluded
that

repeated violations of the confidentiality of a prisoner's
incoming court mail are more central than ancillary to
the right of court access, and thus no showing of
actual injury is necessary for plaintiff to establish that
the right has been infringed. We are satisfied that a
practice of opening court mail outside an inmate's
presence implicates a core aspect of the right.

Id.

Thus, Bieregu established that in cases involving a
prisoner's legal mail being repeatedly opened outside of his
presence, a showing of actual injury was not required. Id.

Shortly after Bieregu was decided, the Supreme Court
considered the "actual injury" requirement in right-to-
court-access cases. See Lewis v. Casey, 116 S. Ct. 2174
(1996). Casey involved a class action on behalf of all adult
prisoners incarcerated by the State of Arizona Department
of Corrections. The prisoners alleged that the prison library
_________________________________________________________________

5. We defined "ancillary" aspects of court access as those aspects "which
`may affect merely comfort or convenience without depriving a prisoner
of access,' " such as a prison's refusal to supply pens or paper when the
prisoners had sufficient funds to purchase the items themselves. Id. at
1455 (quoting Peterkin v. Jeffes, 855 F.2d 1021, 1041 (3d Cir. 1988)). In
contrast, a "central" aspect would include a practice that "inhibits an
inmate's ability to protect his legal rights." Bieregu, 59 F.3d at 1455.

                    5
was inadequate and, thus, effectively denied them access to
the courts. Noting that the requirement of actual injury
"derives ultimately from the doctrine of standing," the Court
held that to pursue a claim of denial of access to the courts
an inmate must allege actual injury, such as the loss or
rejection of a legal claim. Id. at 2179. While the Court did
not discuss whether the adequacy of the prison library
involved an "ancillary" or "central" aspect of the right to
court access, it is clear that it found such a distinction
irrelevant for purposes of the actual injury requirement.

In any event, as we pointed out in Bieregu, the adequacy
of a prison law library involves "issues central to the right
of court access." Bieregu, 59 F.3d at 1455 (citing Peterkin,
855 F.2d at 1039, 1041-42). As such, there is no question
that after Casey, even claims involving so-called central
aspects of the right to court access require a showing of
actual injury. That is, the inmate must "demonstrate that
the alleged shortcomings . . . hindered his efforts to pursue
a legal claim." Casey, 116 S. Ct. at 2179.

It is clear, then, that Casey has effectively overruled
Bieregu. Accordingly, we reject Oliver's reliance on Bieregu
to avoid the actual injury requirement. As the district court
noted, the record indicates that Oliver suffered no injury as
a result of the alleged interference with his legal mail. His
papers addressed to the New Jersey Superior Court did
arrive, as evidenced by the fact that his appeal was
considered and adjudicated by that court. In addition, the
district court received correspondence from Oliver and
considered the arguments raised therein. Because Oliver
was not prejudiced by the Defendants' alleged interference
with his mail, the district court properly granted summary
judgment in favor of the Defendants.

For the foregoing reasons, we will affirm the judgment of
the district court.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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