                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-2-2006

Hamm v. Rendell
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3016




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"Hamm v. Rendell" (2006). 2006 Decisions. Paper 1646.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1646


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                    NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                              NO. 05-3016
                           ________________

                            ANCELL HAMM,
                                Appellant

                                      v.

           EDWARD RENDELL, GOVERNOR OF PENNSYLVANIA;
        MICHAEL FISHER, ATTORNEY GENERAL OF PENNSYLVANIA;
   JEFFREY A. BEARD, SECRETARY OF CORRECTIONS; NEAL MECHLING,
            SUPERINTENDENT AT SCI-Pittsburgh, on 27 June 2003;
    CO-I YONLISKY, SCI-PITTSBURGH; CO-I GEORGE, SCI-PITTSBURGH;
   CO-I PEER, SCI-PITTSBURGH; LIEUTENANT BLAKEY, SCI-PITTSBURGH;
CP-IV TEETER, SCI-PITTSBURGH; WILLIAM S. STICKMAN, SUPERINTENDENT
     AT SCI-PITTSBURGH; CO-II SERGEANT COOPER, SCI-PITTSBURGH;
      CO-IV CAPTAIN COLE, SCI-PITTSBURGH; SHELLY MANKEY, SCI-
PITTSBURGH; JAMES META, FOOD SERVICES MANAGER, SCI-PITTSBURGH;
  ROBERT S. BITNER, CHIEF HEARING EXAMINER FOR PA. CORRECTIONS;
     TONYA EDWARDS, MAILROOM DEPARTMENT SUPERVISOR, SCI-
                             PITTSBURGH

                ____________________________________

              On Appeal From the United States District Court
                 For the Western District of Pennsylvania
                        (D.C. Civ. No. 03-cv-01770)
                District Judge: Honorable Gary L. Lancaster
              _______________________________________

                Submitted Under Third Circuit LAR 34.1(a)
                            January 27, 2006

    Before: SLOVITER, SMITH AND VAN ANTWERPEN, CIRCUIT JUDGES

                         (Filed February 2, 2006)
                               _______________________

                                      OPINION
                               _______________________

PER CURIAM

       Ancell Hamm Appeals the District Court’s order dismissing his complaint under

28 U.S.C. § 1915A. For the following reasons we will affirm in part, vacate in part, and

remand for further proceedings.

       Hamm is a Pennsylvania state prisoner serving two consecutive life sentences for

murder. According to Hamm, because he did not comply with prison regulations

requiring outgoing envelopes to bear an indication that the sender was a DOC inmate,

certain of the defendants confiscated envelopes found in his cell and mail he attempted to

send to Germany, and subjected him to wrongful disciplinary proceedings. Accordingly,

in 2003 he filed a civil rights action alleging that certain defendants conducted a random

cell search in violation of prison regulations (Count III); unlawfully read his outgoing

mail and confiscated mail he tried to send to Germany as well as envelopes in his cell

(Counts IV and V); and conspired to issue a wrongful misconduct based on his alleged

failure to comply with mail regulations and otherwise violated his rights with regard to

that misconduct and its attendant proceedings (Counts II, VIII, IX, X and XI). He also

complains that the defendants failed to provide mail service on Saturdays (Count VI);

confiscated from the incoming mail a “Ruger Fine Firearms Catalog” and “Ammunition

Manufactures [sic] Product & Service Directory” without providing due process, and


                                             2
improperly returned to sender Hamm’s “Karl Zeiss Optikal Catalogue depicting Zeiss

Riflescopes” (Counts VII and XII). Hamm also alleges that these alleged violations of his

rights all occurred due to the failure of defendants Rendell, Fisher, Beard and Mechling to

train the remaining defendants (Count I), and that by preventing him from seeking to

obtain “scientific information” from various companies, the defendants have hampered

his pursuit of a pending state habeas corpus action challenging his convictions. Finally,

Hamm includes RICO and obstruction of justice allegations against certain of the

defendants (Count IX).

       On his complaint form Hamm checked the affirmative box next to the question

inquiring whether there is a grievance procedure at the prison and the negative box next

to the question asking whether he had “present[ed] the facts relating to your complaint” in

that procedure. As a result, the defendants moved to dismiss for failure to exhaust

administrative remedies as required by 42 U.S.C. § 1997e(a). Hamm responded that he

had, in fact, exhausted available remedies.

       Rather than resolving this dispute, the Magistrate Judge recommended dismissing

Hamm’s complaint as meritless under the screening provisions set forth in 28 U.S.C. §

1915(A). The Magistrate Judge found that requiring prisoners’ outgoing mail to bear a

notice indicating that the sender is a DOC inmate does not violate Hamm’s First

Amendment rights. He also concluded that prisoners do not have a constitutional right to

mail service on Saturdays or to possess weapons-related catalogs, and that Hamm’s First

Amendment rights were not violated when the defendants read his outgoing mail. The

                                              3
Magistrate Judge rejected Hamm’s due process arguments concerning the confiscation of

his mail pursuant to Hudson v. Palmer, 468 U.S. 517 (1984), because Pennsylvania

provides adequate post-deprivation remedies, and summarily rejected his challenge to the

misconduct proceedings pursuant to Sandin v. Conner, 515 U.S. 472 (1995). The

Magistrate Judge found no merit in Hamm’s access to the courts claim because Hamm

has not shown how the defendants’ actions resulted in an actual injury to his state habeas

corpus action, noting that the action was likely frivolous because the only avenue for

relief under state law is the PCRA, not habeas corpus. Finally, the Magistrate Judge

summarily rejected Hamm’s contention that the defendants’ actions violate 18 U.S.C. §§

1506, 1701 et seq., and 1961 et seq., as well as the Homeland Security Act, and, having

deemed all of Hamm’s underlying claims meritless, rejected his failure to supervise

claims on that basis.

       Hamm filed objections, but the District Court adopted the Magistrate Judge’s

Report and Recommendation and dismissed the complaint. This appeal followed.1

                                             I

       The District Court dismissed Hamm’s complaint under section 1915A. However,



   1
     We have jurisdiction under 28 U.S.C. § 1291. Our review is plenary. Geiger v.
Jowers, 404 F.3d 371 (5th Cir. 2005); Shakur v. Selsky, 391 F.3d 106 (2d Cir. 2004).
When reviewing dismissal of a complaint for failure to state a claim, we accept the
allegations in the complaint as true and do not affirm unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim which would entitle him to
relief. Carino v. Stefan, 376 F.3d 156, 159 (3d Cir. 2004).


                                             4
that is a screening provision, pursuant to which the court is directed to examine the

complaint “before docketing, if feasible or, in any event, as soon as practicable after

docketing.” 28 U.S.C. § 1915A. Here, the Magistrate Judge did not address Hamm’s

complaint until eighteen months after he filed it, by which time the defendants had moved

to dismiss on different grounds (failure to exhaust). Thus, if dismissal under the PLRA

were appropriate, it is arguable that the court should instead have dismissed the complaint

under 42 U.S.C. § 1997e(c)(1) (providing for dismissal of a complaint as frivolous,

malicious, or failing to state a claim), which, unlike section 1915A,2 applies throughout

the proceedings. See Grayson v. Mayview State Hosp., 293 F.3d 103, 110 n.11 (3d Cir.

2002).3

       We need not resolve that issue here, however, because either way our review of the

dismissal of Hamm’s complaint entails the same analysis. Enactment of the PLRA did

not alter our long-standing rule that a court should not dismiss a complaint for failure to

state a claim without first providing leave to amend, unless it finds bad faith, undue delay,

prejudice or futility. Shane v. Fauver, 213 F.3d 113, 117 (3d Cir. 2000) (section

1997e(c)(1)); Grayson, 293 F.3d at 110-111 (section 1915(e)(2)); Davis v. Dist. of

   2
     “Section 1915A requires the district court to dismiss a case sua sponte if, in
reviewing the complaint before the defendant answers, the court finds that the complaint
fails to state a claim upon which relief could be granted.” Davis v. District of Columbia,
158 F.3d 1342, 1348 (D.C. Cir. 1998) (emphasis added).

   3
    Dismissal under § 1915(e)(2) was not an option because Hamm paid the filing fee.
See Grayson v. Mayview State Hosp., 293 F.3d 103, 110 n.10 (3d Cir. 2002).


                                              5
Columbia, 158 F.3d 1342, 1349 (D.C.Cir.1998) (section 1915A). Here the District Court

did not enquire whether it should provide Hamm leave to amend. Because there is no

suggestion in the record of bad faith, undue delay or prejudice, we will affirm only if we

agree with the District Court that Hamm has failed to state a claim and determine that he

could correct that failure through amendment.4

                                             II

       For substantially the reasons given by the Magistrate Judge, we agree with the

District Court that Hamm has not stated a claim with regard to his RICO allegations and

due process allegations concerning the confiscation of various items from his cell, and

conclude that amendment as to those allegations would be futile. To that extent, we will

affirm the judgment of the District Court.

                                             III

       Hamm’s remaining claims center on two groups of issues: denial of his First

Amendment rights as a result of allegedly improper mail inspections, intrusive mail

regulations, etc., and the denial of due process in the related misconduct proceeding.

With regard to prison policy or actions affecting Hamm’s incoming mail, the court should

have applied the test set forth in Turner v. Safley, 482 U.S. 78 (1987), and considered


   4
     The appellees argue that we could affirm on the alternative grounds that Hamm has
not exhausted administrative remedies. However, although Hamm initially stated in his
complaint that he has not exhausted available remedies, he argued the opposite at length
in response to the defendants’ motion to dismiss. The Magistrate Judge declined to
consider this dispute, which we cannot readily resolve based on the record before us. The
matter is best addressed in the first instance by the District Court.
                                             6
whether there was a valid, rational connection between the prison regulation and a

legitimate governmental interest, whether there are alternative means of exercising the

right, the effect of accommodation of the right on the prison generally, and whether there

are ready alternatives. Nasir v. Morgan, 350 F.3d 366, 371-372 (3d Cir. 2003). As for

Hamm’s outgoing mail, the court should have applied the test set forth in Procunier v.

Martinez, 416 U.S. 396 (1974), and considered whether the regulation furthers an

important or substantial government interest unrelated to the suppression of expression

and whether the regulation is no more intrusive than is necessary to protect that interest.

Nasir, 350 F.3d at 374. The District Court applied neither test to Hamm’s claims.

Although some of those claims seem unlikely to succeed – the First Amendment does not

seem to require prisons to provide mail service on Saturdays or to give prisoners the right

to receive and possess weapons-related catalogs – given the record before us we are

unwilling to conclude that, had the District Court applied the correct standards, the court

would correctly have concluded that Hamm failed to state a claim with regard to all of his

First Amendment claims and could not correct that failure through amendment.

       As for Hamm’s due process claims related to the misconduct, analysis under

Sandin is fact-specific: courts must consider the duration of the disciplinary confinement

and the conditions of that confinement in relation to other prison conditions. Mitchell v.

Horn, 318 F.3d 523, 532 (3d Cir. 2003). Where, as here, the District Court does not

engage in the requisite factual inquiry, we remand for development of the record. Id. 533.

       Accordingly, we will vacate the judgment of the District Court with regard to these

                                             7
two sets of claims and remand for further proceedings. Of course, should the District

Court agree with the appellees that Hamm has failed to exhaust administrative remedies

with regard to these claims, it need not reach the merits at all. See 42 U.S.C. § 1997e(a).

We express no opinion on whether these claims are exhausted or meritorious.




                                             8
