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HomeMy WebLinkAbout2003-6287 Civil ALFONSO PERCY PEW, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. JAMES VISCUSI, ET AL., DEFENDANTS 03-6287 CIVIL TERM IN RE: MOTION OF DEFENDANTS FOR JUDGMENT ON THE PLEADINGS OPINION AND ORDER OF COURT Bayley, J., October 4, 2006:-- Plaintiff, Alfonso Pew, an inmate under the jurisdiction of the Pennsylvania Department of Corrections, instituted this suit against various employees of the Department. The complaint includes claims involving the seizure by the Department of five of his outgoing letters, for (1) violating his civil rights under color of state law, and (2) retaliation "because of prison litigation that was filed in Cumberland County." The Department responded to the complaint and filed new matter. The new matter pleads that an employee of the Department seized the five outgoing letters of plaintiff, each of which contained the following return address: NAME Arthur Stewart NUMBER AM-2959 P.O. BOX 99901 PITTSBURGH, PA 15233 The Department further pleads: 75. Plaintiff's Pennsylvania Department of Corrections Inmate Number is BT-7263. 76. Plaintiff has never been assigned Pennsylvania Department of Corrections Inmate Number AM-2959. 77. Pennsylvania Department of Corrections' Policy DC-ADM 803, see Ex. D, which concerns inmate mail, pertinently states: a. All outgoing mail shall include on the envelope the full-approved inmate name, Department inmate number, and return address 03-6287 CIVIL TERM printed in a legible, undisguised manner on the upper, left-hand corner of the envelope. Plaintiff did not respond to the new matter; therefore, the averments are admitted. Pa. Rule of Civil Procedure 1029. The Department filed a motion for judgment on the pleadings which may be granted where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Merz v. City of Philadelphia, 719 A.2d 1131 (Pa. Commw. 1989). Federal law at 42 U.S.C. Section 1983, provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State. . . subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. In Miles v. Wiser, 847 A.2d 237 (Pa. Commw. 2004), the Commonwealth Court set forth: To state a claim under Section 1983, a plaintiff must (1) allege a violation of rights secured by the United States Constitution and the laws of the United States and (2) show that the alleged deprivation was committed by a person acting under the color of state law. (Citations omitted.) Plaintiff has admitted that his attempt to mail correspondence under another inmate's name and inmate number was a violation of DC-ADM-803. The seizure of contraband by the Department cannot constitute a violation of his civil rights. To state a claim for retaliation, plaintiff must allege and (1) prove that the conduct which led to the alleged retaliation was constitutionally protected, (2) show that he suffered some adverse action at the hands of the prison officials and (3) prove a -2- 03-6287 CIVIL TERM causal link between the exercise of his constitutional rights and the adverse action taken against him. See Rauser v. Horn, 241 F.3d 330 (3rd Cir. 2001). Plaintiff cannot meet the third prong of this test because he has admitted that the five letters he attempted to mail were under another inmate's name and inmate number, and that the seizure resulted from his violation of Departmental policy. Based on the seizure of his five letters, plaintiff seeks an order enjoining interference with his mail and legal proceedings. The Department may seize mail as contraband when it is sent in violation of its policy. Because the seizure was justified, there is no legal basis for entering an injunction when plaintiff has not been harmed. See Buck v. Beard, 834 A.2d 696 (Pa. Commw. 2003). ORDER OF COURT AND NOW, this day of October, 2006, the motion of defendants for judgment on the pleadings on plaintiff's claims for violating his civil rights and retaliation, IS GRANTED. By the Court, Edgar B. Bayley, J. Alfonso Percy Pew, BT-7263, Pro se SCI Rockview P.O. Box A Bellefonte, PA 16823 -3- 03-6287 CIVIL TERM Debra Sue Rand, Esquire Assistant Counsel Pennsylvania Department of Corrections 55 Utley Drive Camp Hill, PA 17011 F or Defendants :sal -4- ALFONSO PERCY PEW, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. JAMES VISCUSI, ET AL., DEFENDANTS 03-6287 CIVIL TERM IN RE: MOTION OF DEFENDANTS FOR JUDGMENT ON THE PLEADINGS ORDER OF COURT AND NOW, this day of October, 2006, the motion of defendants for judgment on the pleadings on plaintiff's claims for violating his civil rights and retaliation, IS GRANTED. By the Court, Edgar B. Bayley, J. Alfonso Percy Pew, BT-7263, Pro se SCI Rockview P.O. Box A Bellefonte, PA 16823 Debra Sue Rand, Esquire Assistant Counsel Pennsylvania Department of Corrections 55 Utley Drive Camp Hill, PA 17011 F or Defendants :sal