1Plaintiff did not name original defendant Henson as a defendant in his amended

complaint. 

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RUSSELL TINSLEY : CIVIL ACTION

: NO. 05-2777

V. :

:

LOUIS GIORLA, et al. :

 

O’NEILL, J. APRIL 1, 2008

MEMORANDUM

On August 9, 2005 plaintiff Russell Tinsley filed a complaint alleging that he was “being

denied access to the courts” against defendants Louis Giorla, Warden of Curran Fromhold

Correctional Facility (“CFCF”); Osie Butler, Deputy Warden of CFCF; CFCF Officer North;

CFCF Officer Wheeler; and a social worker at CFCF identified as “Mr. Henson.” After counsel

was appointed to represent him, plaintiff filed an amended complaint on July 7, 2006 against

previously named defendants Giorla, Butler, North, and Wheeler;1 Leon A. King, Commissioner

of Prisons in Philadelphia; Rodney Brockenbrough, a prison official at Philadelphia Industrial

Correctional Center (“PICC”); PICC Sergeant Cuffee; PICC Lieutenant Knight; and PICC

Lieutenant Spellman. Plaintiff’s amended complaint alleges the following claims under 42

U.S.C. § 1983: inadequate access to the prison legal library in violation of the Fourteenth

Amendment (Count I); denial of legal correspondence in violation of the First Amendment

(Count II); seizure of legal papers in violation of the Fourth Amendment (Count III); retaliation

in violation of the First and Fourteenth Amendments (Count IV); and cruel and unusual

punishment in violation of the Eighth and Fourteenth Amendments (Count V). 

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2My colleague, Judge Surrick, was acting as emergency judge during my absence from the

courthouse. 

2

Plaintiff filed a motion for a temporary restraining order and preliminary injunction on

August 16, 2006. The Honorable R. Barclay Surrick held a hearing on plaintiff’s motion on

August 17, 2006 and denied plaintiff’s motion in a memorandum and Order dated August 22,

2006.2

Presently before me are defendants’ motion for summary judgment, plaintiff’s response,

and defendants’ reply. 

BACKGROUND

At all times relevant to this action plaintiff Russell Tinsley, a citizen of the United States,

was incarcerated at CFCF, located at 7901 State Road, Philadelphia, Pennsylvania, or PICC,

located at 8301 State Road, Philadelphia, Pennsylvania. Plaintiff was received into custody at

CFCF on or about March 9, 2005. On June 16, 2005 plaintiff was transferred to PICC, where

remained incarcerated until February 24, 2006, when he was transferred back to CFCF. 

Upon admission to the Philadelphia Prison System inmates receive a Philadelphia Prisons

Policies and Procedures Handbook which provides information regarding inmates’ rights and

responsibilities and inmate grievance procedures. Plaintiff stated in a sworn declaration dated

August 4, 2006 that he received this Handbook at the time of his incarceration. He attached to

his Declaration as Exhibit “A” a copy of Section 3.F.7 of the Philadelphia Prisons Policies and

Procedures – according to plaintiff, “the relevant portions of the Handbook” – which discusses

the subject of inmate law libraries. Plaintiff further testified that he reviewed the Handbook

while a trainee at the PICC law library between November 2005 and February 2006. 

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I. Plaintiff’s Access to Law Libraries

With respect to inmates’ rights to reasonable access to law libraries the Philadelphia

Prisons Policies and Procedures specifically provide, “The inmate population will have

reasonable access to the law library within the hours that the law libraries are required to be open. 

A scheduling system will be developed and implemented by each facility that will ensure fair

access to the law library by the inmates.” CFCF and PICC have established systems whereby

inmates of a particular housing unit are allowed access to the law libraries. Each housing unit is

assigned approximately an hour and a half per day, approximately two days per week. An inmate

is required to sign up for his unit’s assigned time, and access is granted on a first-come, firstserve basis. An inmate is permitted to request additional time in the law library by submitting a

“request to staff” for approval. Any denied request to staff must be justified and logged. The

law libraries are not open during regular hours only in the event of a lock down – a major

disturbance in the facilities – or during count time – approximately 5:30 p.m. to 6:00 p.m. 

Plaintiff was granted access to the law libraries while incarcerated at CFCF from March

2005 to June 2005 and at PICC from June 2005 to November 2005. Plaintiff testified, “I got to

go to the law library, but not every day . . . .” Though the record indicates that plaintiff signed

into the law library fifty-two times from late March 2005 through November 2005, plaintiff

alleges that defendants denied him access on numerous occasions, even when he had signed in. 

Consequently, the specific number of times plaintiff was granted access to the law library is

unclear from the record. Plaintiff testified, “I can’t give you an actual calculation of how much

time I have per week because some weeks I didn’t even get into the law library. Some days I

didn’t get into the law library, whether I signed up or not.” He added, “I don’t recall the exact

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4

number, but I know it wasn’t enough.” Plaintiff further testified, “What I believe would have

been adequate access, to give me anywhere from 15 to 20 hours per week. I would have been

satisfied with that.” 

In November 2005 plaintiff was hired as a law library trainee at PICC. In that position

plaintiff was assigned to the law library five days per week for approximately five hours per day. 

Plaintiff alleges that during this time he usually was assisting others and was not working on his

own case; however, defendant Spellman fired plaintiff in February 2006 because he was not

helping other inmates with their cases and was failing to perform his duties in the law library. 

One week after he was fired as a law library trainee at PICC, plaintiff was transferred back to

CFCF. 

On March 16, 2006 plaintiff’s law library and legal mailing privileges were revoked

pursuant to an Order entered by the Court of Common Pleas of Philadelphia County. On August

31, 2006 the Court vacated its March 16 Order and reinstated plaintiff’s law library and legal

mailing privileges. Plaintiff alleges that after the reinstatement of his privileges plaintiff

“continues to be denied all but minimal, infrequent and severely curtailed access to the law

library at CFCF despite diligently signing up for Assigned Unit Time and requesting additional

time through requests to staff.” 

II. Plaintiff’s Filing of Grievances

With respect to inmate grievance procedures the Philadelphia Prisons Policies and

Procedures provide that inmates may file grievances regarding a policy application within a PPS

facility, a condition within a PPS facility, an action involving an inmate at a PPS facility, or an

incident occurring within a PPS facility. A grievance may be initiated for a number of reasons,

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5

including “an alleged violation of an inmate’s civil, constitutional, or statutory rights. The

Philadelphia Prisons Policies and Procedures expressly state, “Use of, or participation in, the

grievance procedure will not result in any form of reprisal, and an inmate shall be entitled to

pursue, through the grievance procedure, a complaint that a reprisal occurred.” 

The Policies and Procedures provide that the Warden of each PPS facility is responsible

for the proper administration of the grievance procedure and that the Deputy Warden for

Administration is responsible for daily implementation, record keeping, and oversight. The

Policies and Procedures expressly state, “The grievant shall have a right of appeal at every level

of authority, until a grievance reaches the Commissioner of the PPS, whose decision is final.” 

Inmate grievances are placed in “grievance boxes” located within the housing units of PPS

facilities. The grievances are to be delivered to the Deputy Warden for Administration every

weekday by 12:00 p.m. On weekends, the grievances are to be delivered to the shift commander,

who will review them for emergencies and deliver them to the Deputy Warden by 12:00 p.m. on

Monday. 

The Deputy Warden is to review the grievance and make one of three decisions: 1) reject

the grievance and return it to the inmate with a notation explaining the return within fourteen

days if it concerns a non-grievable issue, is frivolous on its face, or is otherwise inconsistent with

procedures; 2) attempt to resolve the grievance him/herself and log the grievance as resolved; or

3) distribute the grievance to an appropriate staff member who then must return the grievance

form to the Deputy Warden with a proposed resolution or explanation for inability for resolution

within thirty days. If the Deputy Warden chooses option three, he/she will forward a Finding of

Inmate Grievance form noting the recommended action to the Warden for review. The Warden

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will review the Deputy Warden’s recommended action and approve, deny, or modify it within

fourteen days, note his/her decision on the Finding of Inmate Grievance Form, and forward

signed copies to the inmate. If unsatisfied with the Warden’s decision, the inmate has five days

to appeal to the Commissioner for review. 

The above-stated inmate grievance procedures are set forth in the Philadelphia Prisons

Policies and Procedures and also are provided to inmates in the Inmate Handbook plaintiff

received at the time of his incarceration and reviewed while a trainee at the PICC law library. 

Between March 25, 2005 and December 4, 2006 plaintiff filed at least fifteen grievances

with prison officials at either CFCF or PICC. Plaintiff asserts that the majority of these

grievances related to denial of access to the law library or retaliatory conduct by correctional

officers. PPS records of inmate grievances note six grievances filed by plaintiff, all submitted at

CFCF and marked as resolved. The record in this action includes four Inmate Grievance Forms –

filed on June 30, 2005; September 9, 2006; September 20, 2006; and October 31, 2006 – not

recorded by the PPS records of inmate grievances, i.e., not among the six grievances marked as

resolved. 

Before filing the present action plaintiff never had appealed any denial of his grievances. 

Though he acknowledges receipt and review of the Inmate Handbook, plaintiff alleges that the

grievance procedure was not explained during his orientation or at anytime thereafter. Plaintiff

further alleges that defendant Butler “didn’t give me any impression that I had to file an

additional appeal on her findings, you know. She said once she get a decision from the warden,

that’s a final decision.” Plaintiff therefore alleges that prior to the filing of this action he did not

know appeal was an option in the inmate grievance procedure.

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III. Plaintiff’s Allegations of Retaliatory Acts

Plaintiff’s amended complaint alleges that defendants engaged in at least six specific

instances of retaliation “designed to: (1) obstruct [plaintiff] from obtaining access to the law

library to prepare his defense in his Criminal Action; (2) unlawfully confiscate his property; and

(3) prevent him from seeking redress for being denied access to the law library, but also, further

generalized attempts by the Defendants to subject [plaintiff] to a hostile and unsafe living

environment, and to subject him to threats to his well-being.” Plaintiff alleges that defendants

engaged in these actions “[a]s a result to [plaintiff’s] numerous attempts to exercise his right to

access the law library, and his expression of dissatisfaction with the ongoing denial of his rights”

both verbally and through the filing of grievances. 

Plaintiff notes in his brief that “four acts of retaliation in particular stand out as acts that

have clearly violated [plaintiff’s] constitutional rights”: 1) after plaintiff filed grievances against

CFCF officers and this lawsuit, he was transferred from CFCF to PICC as punishment; 2) for his

alleged misconduct after being denied access to the PICC law library on June 27, 2005, plaintiff

was placed in administrative segregation for twelve days and his legal materials were

confiscated; 3) after plaintiff filed a grievance against defendant Knight for mistreating him as a

law library trainee, defendant Knight allegedly threatened to have plaintiff placed in

administrative segregation, harmed by other inmates, and killed; and 4) after plaintiff questioned

defendant Wheeler about why she refused to hire him at the CFCF law library, defendant

Wheeler allegedly threatened plaintiff and insinuated that she would kill him. 

STANDARD OF REVIEW

Rule 56(c) of the Federal Rules of Civil Procedure provides, in relevant part, that

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8

summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(c). An issue of material fact is genuine if “the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986). Summary judgment will be granted “against a party who fails to make a showing

sufficient to establish the existence of an element essential to that party’s case, and on which that

party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 

The party moving for summary judgment has the burden of demonstrating that there are

no genuine issues of material fact. Id. at 322-23. If the moving party sustains the burden, the

nonmoving party must set forth facts demonstrating the existence of a genuine issue for trial. See

Anderson, 477 U.S. at 255. Rule 56(e) provides that when a properly supported motion for

summary judgment is made, “an adverse party may not rest upon the mere allegations or denials

of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise

provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” 

Fed. R. Civ. P. 56(e). The adverse party therefore must raise “more than a mere scintilla of

evidence in its favor” in order to overcome a summary judgment motion, and cannot survive by

relying on unsupported assertions, conclusory allegations, or mere suspicions. Williams v.

Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989). However, the “existence of disputed

issues of material fact should be ascertained by resolving ‘all inferences, doubts and issues of

credibility against’” the moving party. Ely v. Hall’s Motor Transit Co., 590 F.2d 62, 66 (3d Cir.

1978), quoting Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870, 878 (3d Cir. 1972).

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DISCUSSION

I. Failure to Exhaust Administrative Remedies

As a threshold issue defendants contend that plaintiff’s present claim is barred for failure

to exhaust his administrative remedies. The Prison Litigation Reform Act provides, in relevant

part: “No action shall be brought with respect to prison conditions . . . by a prisoner confined in

any jail, prison, or other correctional facility until such administrative remedies as are available

are exhausted.” 42 U.S.C. § 1997e(a). The Court of Appeals consistently has held that “an

inmate seeking relief that the prison’s administrative grievance system cannot provide . . . must

nonetheless pursue the grievance process to its end before coming to federal court. [The Court of

Appeals] concluded that the PLRA ‘make[s] exhaustion of all administrative remedies

mandatory.’” Spruill v. Gillis, 372 F.3d 218, 227 (3d Cir. 2004), quoting Nyhuis v. Reno, 204

F.3d 65, 67 (3d Cir. 2000) (emphasis in original). However the Court of Appeals has made an

exception to the exhaustion requirement where an inmate demonstrates that he lacked “available”

administrative remedies. See Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003) (finding that an

inmate lacked “available” administrative remedies where prison officials denied him necessary

grievance forms).

In the present motion defendants argue that plaintiff’s § 1983 claim is barred because

plaintiff never has filed an appeal pursuant to the inmate grievance procedures at CFCF and

PICC and therefore has failed to exhaust his administrative remedies. Though plaintiff admits

that he was provided and subsequently reviewed a Philadelphia Prisons Policies and Procedures

Handbook outlining the inmate grievance procedures, plaintiff alleges that defendant Butler

expressly informed him that the initial decision by the warden is a final decision, i.e., no appeals

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process existed. I conclude that such a statement if accepted by the fact-finder as having been

made is a sufficient basis for the fact-finder to determine that plaintiff lacked “available”

administrative remedies. 

II. Plaintiff’s Section 1983 Claims

Section 1983 provides an avenue for individuals to adjudicate violations of rights secured

under federal constitutional or statutory law. Elmore v. Cleary, 399 F.3d 279, 281 (3d Cir.

2005). A valid claim under § 1983 must plead adequately three elements: (1) defendants acted

under color of law; (2) defendants violated plaintiffs’ federal constitutional or statutory rights;

and (3) that violation caused injury to plaintiffs. Id. In the present motion defendants argue that

they are entitled to summary judgment on all five counts of plaintiff’s amended complaint. I will

discuss each count in turn. 

A. Count I: Inadequate Access to the Prison Legal Library in Violation of the Fourteenth

Amendment 

Count I of plaintiff’s amended complaint alleges that defendants violated his right to

meaningful access to the courts under the Fourteenth Amendment “by restricting and denying

[plaintiff] access to the law library.” In asserting this claim plaintiff relies on Bounds v. Smith,

where the United States Supreme Court held that “the fundamental constitutional right of access

to the courts requires prison authorities to assist inmates in the preparation and filing of

meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance

from persons trained in the law.” 430 U.S. 817, 828 (1977).

Subsequent to its holding in Bounds the Supreme Court has asserted, “The right that

Bounds acknowledged was the (already well-established) right of access to the courts. . . .

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Bounds did not create an abstract, freestanding right to a law library or legal assistance . . . .” 

Lewis v. Casey, 518 U.S. 343, 350 (1996), citing Bounds, 430 U.S. at 817, 821, 828 (emphasis in

the original). “Insofar as the right vindicated by Bounds is concerned, ‘meaningful access to the

courts is the touchstone,’ and the inmate therefore must go one step further and demonstrate that

the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue

a legal claim. Casey, 518 U.S. at 351, quoting Bounds, 430 U.S. at 823 (“He might show, for

example, that a complaint he prepared was dismissed for failure to satisfy some technical

requirement which, because of deficiencies in the prison's legal assistance facilities, he could not

have known. Or that he had suffered arguably actionable harm that he wished to bring before the

courts, but was so stymied by inadequacies of the law library that he was unable even to file a

complaint.”). The Court reasoned, “Although Bounds itself made no mention of an actual-injury

requirement, it can hardly be thought to have eliminated that constitutional prerequisite. And

actual injury is apparent on the face of almost all the opinions in the 35-year line of

access-to-courts cases on which Bounds relied.” Casey, 518 U.S. at 351-52, citing Bounds, 430

U.S. at 821-25. 

The Court also noted in Casey that the dissent’s suggestion of waiving this actual-injury

requirement in cases involving substantial, systemic deprivation of access to court – i.e., in cases

involving a direct, substantial and continuous limit on legal materials, total denial of access to a

library, or an absolute deprivation of access to all legal materials – rested upon the expansive

understanding of Bounds repudiated by the Court. Casey, 518 U.S. at 353 n.4, citing Bounds,

430 U.S. at 401 n.2 (Souter, J., dissenting) (“Unless prisoners have a freestanding right to

libraries, a showing of the sort Justice Souter describes would establish no relevant injury in fact,

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12

i.e., injury-in-fact caused by the violation of legal right.” (emphasis in original)). 

Plaintiff alleges that defendant’s failure to grant him a reasonable amount of time in the

law libraries at CFCF and PICC – according to plaintiff, fifteen to twenty hours per week –

constitutes a violation of his right to access to the courts. However, because there is no

freestanding right to libraries, plaintiff in this case must demonstrate that the alleged limitation

on his access to the law libraries hindered his efforts to pursue a legal claim, even where

plaintiff’s law library privileges were revoked for a period of time pursuant to a court order. In

other words, plaintiff must demonstrate actual injury beyond his mere dissatisfaction over

defendants’ failure to grant him an absurdly high number of hours per week in the law library. 

Plaintiff has failed to provide evidence that his efforts to pursue a legal claim were

hindered, and thus plaintiff fails to meet the constitutional prerequisite of demonstrating actual

injury. Contrary to plaintiff’s contentions, the record reflects he was able fully to pursue his legal

claims and exercise his right of access to the courts. First, as plaintiff admitted in his deposition,

he indeed was granted access to the law library for the majority of his time at CFCF and PICC. 

Though the number of hours plaintiff spent in the law library is unclear, I nevertheless conclude

that the law library access actually granted to plaintiff was meaningful. The record shows that

access to the law libraries at CFCF and PICC enabled plaintiff to initiate two civil actions in this

Court and file numerous motions in his criminal action in the Court of Common Pleas. Further

plaintiff has not missed any deadlines or requested any continuances in his criminal action based

on insufficient time in the law libraries. Nothing in the record shows that plaintiff suffered delay,

interruption, detriment, or prejudice in any legal action, either pending or contemplated. 

Plaintiff relies on the decision of the Court of Appeals in Peterkin v. Jeffes for the

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proposition that in cases “directly involving prisoners’ access to legal knowledge, an actual

injury necessarily occurs by virtue of a prison’s failure to provide the level of assistance required

under Bounds.” 855 F.2d 102, 1041-42 (3d Cir. 1988). The Court in Peterkin reasoned that

“[l]egal assistance [in contrast to access to resources other than legal assistance such as the

scheduling of available notary services] – whether in the form of an accessible and adequate law

library, court-appointed or other attorneys or para-professionals, or some combination of legal

resources – is central, not peripheral, to the right of access to the courts that Bounds protects.” 

Id. at 1041. 

Yet this distinction between “peripheral” and “central” aspects of the right to court access

that formed the foundation of the holding in Peterkin subsequently has been acknowledged by the

Court of Appeals as “irrelevant for purposes of the actual injury requirement” after the Supreme

Court’s decision in Casey. Oliver v. Fauver, 118 F.3d 175, 177 (3d Cir. 1997) (“While the Court

[in Casey] 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.”). Indeed, pursuant to the Supreme Court’s decision in

Casey, even the revocation of plaintiff’s law library privileges between March 16, 2006 and

August 31, 2006 is insufficient to waive the actual injury requirement, as the Court in Casey

asserted that a total denial of access to a library or an absolute deprivation of access to all legal

materials would establish no relevant injury in fact caused by the violation of a legal right. 

Therefore, contrary to plaintiff’s argument, I find myself bound by the assertion by the

Court of Appeals in Oliver that “there is no question that after Casey, even claims involving socalled central aspects of the right to court access require a showing of actual injury. That is, the

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inmate must ‘demonstrate that the alleged shortcomings . . . hindered his efforts to pursue a legal

claim.” Oliver, 118 F.3d at 177-78, quoting Casey, 518 U.S. at 351. 

Plaintiff also relies on the decision of the Court of Appeals in Bieregu v. Reno for the

proposition that the right of access to the courts derives from the First Amendment right to

petition. 59 F.3d 1445, 1452-53 (3d Cir. 1995). Plaintiff then argues that denial of meaningful

access to the law library is a violation of his First Amendment rights and therefore he need not

allege any consequential injury stemming from that violation, aside from the violation itself. See

Jones v. Brown, 461 F.3d 353, 359 (3d Cir. 2006). In other words, plaintiff attempts to

circumvent the actual injury requirement established in right to access to the courts cases like

Casey by alleging that a denial of access to the law libraries constitutes a violation of his right to

engage in protected communications. 

However, in the aftermath of Casey the Court of Appeals has expressly distinguished the

right of access to the courts implicated in the present case from the right to engage in protected

communications implicated in Bieregu. The Court of Appeals stated in Jones v. Brown – a case

like Bieregu involving a state pattern or practice of opening legal mail outside the presence of the

addressee inmate – “Unlike the provision of legal libraries or legal services, which are not

constitutional ends in themselves, but only the means for ensuring a reasonably adequate

opportunity to present claimed violations of fundamental constitutional rights to the courts,

protection of an inmate’s freedom to engage in protected communications is a constitutional end

in itself.” Jones, 461 F.3d at 359-60, quoting Casey, 518 U.S. at 351 (citation and quotation

marks omitted). The Court’s decision in Jones was grounded in the constitutional principle “that

state prisoners, by virtue of their incarceration, ‘do not forfeit their First Amendment right to use

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of the mails’ . . . and that a ‘pattern or practice of opening properly marked incoming [legal] mail

outside an inmate’s presence infringes communication protected by the right to free speech.’” 

461 F.3d at 358, quoting Bieregu, 59 F.3d at 1452. That principle is not implicated in Count I of

plaintiff’s amended complaint. 

For the reasons stated above I will grant defendants’ motion for summary judgment with

respect to Count I of plaintiff’s amended complaint. 

B. Count II: Denial of Legal Correspondence in Violation of the First Amendment

Count II of plaintiff’s amended complaint alleges that defendants violated his rights under

the First Amendment by withholding legal correspondence addressed to plaintiff. As stated

above, “state prisoners, by virtue of their incarceration, do not forfeit their First Amendment right

to use of the mails,” and “protection of an inmate’s freedom to engage in protected

communications is a constitutional end in itself.” Jones, 461 F.3d at 358, 360 (citation omitted)

(internal quotation marks omitted). In asserting a violation of access to the courts under the First

Amendment based on a denial of legal correspondence an inmate must “demonstrate that a

nonfrivolous legal claim had been frustrated or was being impeded.” Casey, 518 U.S. at 352,

cited in Rivera v. Chesney, 1998 WL 639255, at *2 (E.D. Pa. Sept. 17, 1998). The Court of

Appeals has held that a “pattern or practice of opening properly marked incoming [legal] mail

outside an inmate’s presence infringes communication protected by the right to free speech,” 

Jones, 461 F.3d at 358 (citation omitted), i.e., that pattern or practice is sufficient to demonstrate

a legal claim had been frustrated or was being impeded.

Plaintiff’s amended complaint alleges that “CFCF Defendants have withheld legal

correspondence addressed to [plaintiff]” but makes no allegation regarding a pattern, practice, or

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16

policy infringing inmates’ communication protected by the right to free speech. The record

indicates that Count II of plaintiff’s amended complaint is founded upon three specific instances. 

First plaintiff testified to “a couple of occasions” – one before March 16, 2006 and one after

March 16, 2006 when the Order of the Court of Common Pleas revoking plaintiff’s legal mail

privileges was in effect – where plaintiff believed that legal letters addressed to him from the

Department of Justice regarding tort claims were returned to sender. Plaintiff alleges that for the

mailing sent before March 16, an unidentified correctional officer brought the letter to him but

then stated that the letter would have to be sent back. However, plaintiff testified at his

deposition that he subsequently received a copy of the legal letter from the Department of Justice

previously denied to him and submitted the enclosed forms. Plaintiff also testified that at some

point after August 31, 2006 the District Attorney’s office did not receive an original copy of his

“petitions for permission to file an interrogatory appeal to the Superior Court.” However,

plaintiff testified that he sent another copy after receiving a motion from the District Attorney’s

office requesting an extension of time. 

These three instances do not constitute a pattern, practice, or policy infringing

communication protected by the right to free speech case sufficient to analogize plaintiff’s action

to cases like Jones that implicate the right to engage in protected communications. Indeed

plaintiff testified that he subsequently corrected any frustration created by the alleged instances

where mail was denied. Because plaintiff has failed to demonstrate that a nonfrivolous legal

claim had been frustrated or was being impeded I will grant defendants’ motion for summary

judgment with respect to Count II of plaintiff’s amended complaint. 

C. Count III: Seizure of Legal Papers in Violation of the Fourth Amendment

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Count II of plaintiff’s amended complaint alleges that defendants violated his rights under

the Fourth Amendment by seizing his legal papers. The Supreme Court has held that “while

persons imprisoned for crime enjoy many protections of the Constitution, it is also clear that

imprisonment carries with it the circumscription or loss of many significant rights.” Hudson v.

Palmer, 468 U.S. 517, 524 (1984), citing Bell v. Wolfish, 441, U.S. 520, 545 (1979). Addressing

the applicability of the Fourth Amendment in the prison context the Court reasoned in Hudson

that the “right of privacy in traditional Fourth Amendment terms is fundamentally incompatible

with the close and continual surveillance of inmates and their cells required to ensure

institutional security and internal order.” 468 U.S. at 527-28. The Court accordingly held that an

inmate “does not have a reasonable expectation of privacy enabling him to invoke the protections

of the Fourth Amendment.” Id. at 530. 

The Court noted that this holding “does not mean that [an inmate] is without a remedy for

calculated harassment unrelated to prison needs, id., and “[t]hat the Fourth Amendment does not

protect against seizures in a prison cell does not mean that an inmate’s property can be destroyed

with impunity,” id. at 528 n.8. For example, the inmate in Hudson brought a claim that by

intentionally destroying his private property a prison guard deprived him of property in violation

of the Due Process Clause of the Fourteenth Amendment. Id. at 530. Recognizing an interest in

protecting inmates from harassment the Court further held in Hudson “that an unauthorized

intentional deprivation of property by a state employee does not constitute a violation of the

procedural requirements of the Due Process Clause of the Fourteenth Amendment if a

meaningful postdeprivation remedy for the loss is available.” Id. at 533. The Court reasoned

that “the state’s action is not complete until and unless it provides or refuses to provide a suitable

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3That plaintiff in this case is a pre-trial detainee, as opposed to a convicted inmate does

not alter my conclusion with respect to Count III of plaintiff’s amended complaint. The bases for

limiting the Fourth Amendment’s applicability to prison cells – the absence of a reasonable

expectation of privacy and the presence of alternative remedies such as tort claims or an internal

grievance procedure – apply equally to incarcerated pre-trial detainees. In Bell the Supreme

Court upheld a room search rule against a Fourth Amendment challenge by pretrial detainees,

“acknowledg[ing] the plausibility of an argument that ‘a person confined in a detention facility

has no reasonable expectation of privacy with respect to his room or cell and that therefore the

Fourth Amendment provides no protection for such a person.’” Hudson, 468 U.S. at 525 n.6,

quoting Bell, 441 U.S. at 556-57. In a concurring opinion in Hudson Justice O’Connor noted,

“When a person is arrested and incarcerated, his personal effects are routinely searched, seized,

and placed in official custody. . . . The loss, theft, or destruction of property so seized has not, to

my knowledge, ever been thought to state a Fourth Amendment claim. Rather, improper

inventories, defective receipts, and missing property have long been redressable in tort by actions

for detinue, trespass to chattel, and conversion.” Hudson, 468 U.S. at 540 (O’Connor, J.,

concurring). 

18

postdeprivation remedy.” Id. An inmate grievance procedure constitutes a meaningful

postdeprivation remedy. See id. at 536 n.15.

To the extent that plaintiff brings his claim solely pursuant to the Fourth Amendment I

find that as an incarcerated individual he did not have a reasonable expectation of privacy

enabling him to invoke the protections of the Fourth Amendment when his legal papers were

taken.3 Though plaintiff does not allege a violation pursuant to the Due Process Clause, I note

that if such an allegation were made the inmate grievance procedure provided by the Philadelphia

Prisons Policies and Procedures is an adequate postdeprivation remedy that would satisfy the

Court’s holding in Hudson. 

For the reasons stated above I will grant defendants’ motion for summary judgment on

Count III of plaintiff’s amended complaint. 

D. Count IV: Retaliation in Violation of the First and Fourteenth Amendments

Count IV of plaintiff’s amended complaint alleges that defendants violated his rights

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under the First and Fourteenth Amendments by retaliating against him for “exercising his right to

adequate access to the law library in order to defend himself in his Criminal Action and to assert

grievances regarding” denials of such access. 

An inmate alleging retaliation must show: (1) constitutionally protected conduct; (2) an

adverse action by prison officials sufficient to deter a person of ordinary firmness from

exercising his constitutional rights; and (3) a causal link between the exercise of his

constitutional rights and the adverse action taken against him. Mitchell v. Horn, 318 F.3d 523,

530 (3d Cir. 2003), quoting Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.2001). 

I first note that plaintiff’s attempts to access the law library on specific instances are not

constitutionally protected conduct that would give rise to a valid retaliation claim. As noted

above, inmates possess no abstract, freestanding constitutional right to a law library. To the

extent that plaintiff’s retaliation claim is founded on denials of access to the law libraries at

CFCF and PICC, I find his claim to be without merit because he fails to establish a genuine issue

of material fact regarding the first step of the analysis. 

To the extent that plaintiff’s retaliation claim is founded upon his filing of grievances, I

find that he fails to establish a genuine issue of material fact regarding the third step of the

analysis. The Court of Appeals applies a burden-shifting framework to determine whether a

causal link exists between the exercise of an inmate’s constitutional rights and the alleged

adverse action taken against him. See Rauser, 241 F.3d at 333, citing Mount Healthy Bd. of Ed.

v. Doyle, 429 U.S. 274, 287 (1977). “[O]nce a prisoner demonstrates that his exercise of a

constitutional right was a substantial or motivating factor in the challenged decision, the prison

officials may still prevail by proving that they would have made the same decision absent the

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protected conduct for reasons reasonably related to a legitimate penological interest.” Id. Yet I

need not engage in this burden-shifting analysis because plaintiff has failed to produce evidence

that filing grievances was the substantial or motivating factor behind defendants’ alleged actions. 

See Rauser, 241 F.3d at 334 (holding that plaintiff possesses “the initial burden of proving that

his constitutionally protected conduct was ‘a substantial or motivating factor’ in the decision to

discipline him”). 

Though plaintiff accuses defendants of engaging in a series of retaliatory acts in response

to his filing of numerous grievances – e.g., including the transfer of plaintiff to PICC, the verbal

threats directed at plaintiff, the seizure of legal papers, the placement of plaintiff in

administrative segregation, the firing of plaintiff at the PICC law library, and the failure to hire

plaintiff at the CFCF law library – plaintiff’s contention regarding causation – that defendants

“have systematically engaged in a course of adverse retaliatory conduct that was motivated, if not

whole, at least in substantial part, by [plaintiff’s] insistence in exercising his rights” – is purely

speculative and has no support in the record. For example, defendants Spellman and Knight –

who plaintiff alleges carried out the retaliatory act of firing him from employment at the PICC

law library based on his history of filing grievances – testified in their depositions that they had

no knowledge that plaintiff had filed prior grievances. Just as there is no basis in the record to

infer that plaintiff was fired from the library because he filed numerous grievances, there is no

basis in the record to infer that plaintiff was treated in any allegedly unfavorable manner because

he filed numerous grievances. The other alleged acts of retaliation are likewise unaccompanied

by evidence suggesting retaliation for the filing of prior grievances. Though alleged acts such as

threats against plaintiff by certain defendants are perhaps abhorrent, they do not give rise to a

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valid retaliation claim where plaintiff’s allegations regarding a causal link are purely speculative. 

For the reasons stated above I will grant defendants’ motion for summary judgment on

Count IV of plaintiff’s amended complaint. 

E. Count V: Cruel and Unusual Punishment in Violation of the Eighth and Fourteenth

Amendments 

Count V of plaintiff’s amended complaint alleges that defendants violated his rights

under the Eighth and Fourteenth Amendments by subjecting him to inhumane and unsafe living

conditions at CFCF and PICC which threaten his liberty and safety without due process of law. 

“The Constitution does not mandate comfortable prisons, but neither does it permit inhumane

ones, and it is now settled that the treatment a prisoner receives in prison and the conditions

under which he is confined are subject to scrutiny under the Eighth Amendment.” Farmer v.

Brennan, 511 U.S. 825, 832 (1994) (citations and quotation marks omitted). “The Cruel and

Unusual Punishments Clause, and indeed the entire Eighth Amendment, is made applicable to

the states through the Fourteenth Amendment.” Hubbard v. Taylor, 399 F.3d 150, 164 n.21 (3d

Cir. 2005), citing Robinson v. California, 370 U.S. 660 (1962).

 “The Eighth Amendment was designed to protect those convicted of crimes and

consequently the Clause applies only after the State has complied with constitutional guarantees

traditionally associated with criminal prosecutions. Thus, the Eighth Amendment’s Cruel and

Unusual Punishments Clause does not apply until after sentence and conviction.” Hubbard, 399

F.3d at 164, quoting Graham v. Connor, 490 U.S. 386, 392 n.6 (1989); Whitley v. Albers, 475

U.S. 312, 318 (1986) (citation and internal quotations omitted). 

Count V of plaintiff’s amended complaint is titled, “Cruel and Unusual Punishment in

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Violation of the Eighth and Fourteenth Amendments Against All Defendants.” At all times

relevant to his cause of action plaintiff was incarcerated at CFCF or PICC while awaiting trial in

the Philadelphia Court of Common Pleas. Though plaintiff states in his brief that his “allegations

regarding the injuries he has suffered as a result of the dangerous overcrowding and understaffing

at CFCF and PICC present a classic case for Eighth Amendment protection,” as plaintiff had not

been sentenced or convicted at the time his amended complaint was filed the Eighth

Amendment’s Cruel and Unusual Punishments Clause does not apply to the present action. 

Plaintiff’s brief does not suggest that his present claim regarding prison conditions arises

under the Due Process Clause of the Fourteenth Amendment and at no point addresses law

regarding conditions of confinement for pre-trial detainees. Nevertheless, reading plaintiff’s

amended complaint liberally, I will address to whether conditions of confinement alleged by

plaintiff constituted a violation of the Due Process Clause of the Fourteenth Amendment. 

When a case concerns “state pre-trial detainees, any applicable constraints must arise

from the Due Process Clause of the Fourteenth Amendment.” Hubbard, 399 F.3d at 158 n.13,

citing Fuentes v. Wagner, 206 F.3d 335, 344 (3d Cir. 2000). The Supreme Court’s due process

analysis under the Fifth Amendment controls that inquiry. Id., citing Union County Jail Inmates

v. DiBuono, 713 F.2d 984, 991-92 (3d Cir. 1983). In Bell v. Wolfish the United States Supreme

Court held, “In evaluating the constitutionality of conditions or restrictions of pretrial detention

that implicate only the protection against deprivation of liberty without due process, we think that

the proper inquiry is whether those conditions amount to punishment prior to an adjudication of

guilt in accordance with law.” 441 U.S. 520, 535 (1979). 

In addressing whether conditions of confinement that constituted punishment in violation

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of the Due Process Clause the Court of Appeals has applied the following two-step test: “first,

whether any legitimate purposes are served by these conditions, and second, whether these

conditions are rationally related to these purposes.” DiBuono, 713 F.2d at 992, citing Bell, 441

U.S. at 542. The Court continued, “In assessing whether the conditions are reasonably related to

the assigned purposes, we must further inquire as to whether these conditions ‘cause [inmates] to

endure [such] genuine privations and hardship over an extended period of time, that the adverse

conditions become excessive in relation to the purposes assigned to them.’” Id., quoting Bell,

441 U.S. at 542. “In evaluating a pretrial detainee’s claim of unconstitutional punishment, courts

must examine the totality of the circumstances within the institution.” Stevenson v. Carroll, 495

F.3d 62, 68 (3d Cir. 2007). 

There is insufficient evidence in the record to support a due process claim here. Though

plaintiff’s amended complaint alleges that he “has been the victim of violence and threatened

violence by other inmates,” plaintiff has presented no evidence to support his bald allegation that

these conditions were “directly caused by the . . . inhumane living conditions at CFCF and

PICC.” Plaintiff’s amended complaint further alleges that “inmates in CFCF and PICC are

frequently subjected to lockdown conditions where they are forced to remain in their cells for 22-

23 hours per day and are denied access to fundamentals such as phone calls and showers.” 

However, considering the totality of the circumstances within the institution and the context of

lockdown – where there is a major disturbance in the facility – I conclude that these deprivations

cannot satisfy the two-part test set forth in DiBuono. It is clear that the record in this case is

materially different from that in Bowers v. City of Philadelphia, where this Court, considering

allegations and extensive evidence of record that overcrowding led to a series of other conditions

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including extended stays in holding cells without beds, showers, and hygiene materials along

with neglect of medical issues and increasing sanitation problems, found that constitutional

violations occurred. 2007 WL 219651, at *22 (E.D. Pa. Jan. 25, 2007). 

For the reasons stated above I will grant defendants’ motion for summary judgment on

Count V of plaintiff’s amended complaint. 

III. Defendants Giorla and King

Defendants argue that judgment should be granted in favor of defendants Giorla and King

because there is no record evidence that either of these supervisory officials possessed actual

knowledge or acquiesced in the alleged constitutional violations. Because I will grant

defendants’ motion for summary judgment on other grounds, I need not reach this issue. 

IV. Qualified Immunity

Defendants insert in their motion for summary judgment an argument based on qualified

immunity. When a state official’s actions give rise to a § 1983 claim, the privilege of qualified

immunity, in certain circumstances, can serve as a shield from suit. Wright v. City of

Philadelphia, 409 F.3d 595, 599 (3d Cir. 2005), citing Hunter v. Bryant, 502 U.S. 224, 227

(1991). Qualified immunity is “an entitlement not to stand trial or face the other burdens of

litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Since qualified immunity is “an

immunity from suit, rather than a mere defense to liability, it is imperative to resolv[e] immunity

questions at the earliest possible stage in litigation.” Saucier v. Katz, 533 U.S. 194, 200-01

(2001) (citations and emphasis omitted). 

The threshold question of the qualified immunity analysis is: “Taken in the light most

favorable to the party asserting the injury, do the facts alleged show the [state actor’s] conduct

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violated a constitutional right?” Id. at 201. If no constitutional violation is shown the inquiry

need not progress and the state actors are entitled to judgment; however, if the facts alleged

demonstrate a constitutional violation, the Court must proceed to ask whether the constitutional

right was clearly established at the time in light of the specific context of the case at bar. Id.

This two-step inquiry reflects the rationale behind the doctrine of qualified immunity: “The

general rule of qualified immunity is intended to provide government officials with the ability

reasonably to anticipate when their conduct may give rise to liability for damages. Where that

rule is applicable, officials can know that they will not be held personally liable as long as their

actions are reasonable in light of current American law.” Anderson v. Creighton, 483 U.S. 635,

646 (1987) (quotation and citation omitted).

As the Court of Appeals has recognized, “There is some disagreement as to how Saucier

should be interpreted. Specifically, the dispute is whether a court must determine the issue of

whether there has been a constitutional violation before reaching the qualified immunity

question, or whether that inquiry is the first part of a two-pronged test for qualified immunity.” 

Wright, 409 F.3d at 600 (“In some cases, we have interpreted Saucier to imply that the issue of

qualified immunity is only relevant after a court has concluded that a constitutional violation has

occurred. In that view, if there is no constitutional violation, there is no reason to reach the

qualified immunity issue. See, e.g., Carswell v. Borough of Homestead, 381 F.3d 235, 237 (3d

Cir. 2004). In other cases, we have interpreted Saucier to mean that a defendant is entitled to

qualified immunity unless a plaintiff can prove both that a constitutional right has been violated,

and then that the constitutional right violated was clearly established. See, e.g., Bennett v.

Murphy, 274 F.3d 133, 136-37 (3d Cir. 2002). Under either interpretation, if no constitutional

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violation is found, a court need not address whether a reasonable officer would have known he or

she was violating a clearly established right.”) The Court has “recognize[d] that a conclusion

that no constitutional violation took place would also negate an essential element of the § 1983

claim.” Id. at 601, citing Albright v. Oliver, 510 U.S. 266, 271 (1994) (“As a practical matter,

the outcome will be the same whether we conclude that the officers are immune from suit or

instead, that the plaintiff has no cause of action.”). 

Pursuant to the above analysis I find that there exist no genuine issues of material fact

with respect to plaintiff’s § 1983 claims and that defendants are entitled to summary judgment. 

Therefore I find it unnecessary to address the issue of qualified immunity and the conflicting

interpretations of Saucier in this case. 

An appropriate Order follows.

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RUSSELL TINSLEY : CIVIL ACTION

: NO. 05-2777

V. :

:

LOUIS GIORLA, et al. :

ORDER

AND NOW, this 1st day of April 2008, upon consideration of defendants’ motion for

summary judgment, plaintiff’s response, and defendants’ reply, it is ORDERED that defendants’

motion for summary judgment is GRANTED and judgment is entered against plaintiff and in

favor of defendants with respect to all counts of plaintiff’s amended complaint. 

s/Thomas N. O’Neill, Jr. 

THOMAS N. O’NEILL, JR., J.

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