UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

OMAR PAYNE

Plaintiff,

v.

C.O. WYATT, et al.,

Defendants.

CIVIL ACTION NO. 3:21-CV-01896

(MEHALCHICK, J.)

MEMORANDUM

Before the Court is a motion to dismiss filed by Defendants Correctional Officer Wyatt 

(“Officer Wyatt”), Lieutenant Lopez (“Lt. Lopez”) and Lieutenant Strong (“Lt. Strong”) 

(collectively, “Defendants”). (Doc. 30). This case involves pro se prisoner-Plaintiff Omar 

Payne (“Payne”), who initiated this above-captioned civil rights pursuant to 42 U.S.C. § 1983, 

by filing a complaint on November 8, 2021. (Doc. 1). In his amended complaint, filed on 

April 19, 2023, Payne re-alleged that Defendants violated his First Amendment rights by 

denying him access-to-courts. (Doc. 19, at 1). On April 30, 2024, Payne filed a second 

amended complaint, again re-alleging his First Amendment denial of access-to-courts claim. 

(Doc. 28). On June 18, 2024, Defendants filed their motion to dismiss Payne’s second 

amended complaint. (Doc. 30). For the following reasons, Defendants’ motion to dismiss will 

be GRANTED. (Doc. 30).

I. BACKGROUND AND PROCEDURAL HISTORY

Payne is a prisoner currently incarcerated at the State Correctional Institution at 

Huntingdon (“SCI-Huntingdon”). (Doc. 1, ¶ 3; Doc. 19, at 1; Doc. 28, ¶ 3). Payne 

commenced this action with the filing of a complaint on November 8, 2021, asserting a 

Fourteenth Amendment violation for deprivation of property, a First Amendment violation 

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for denial of access to the court, and state law claims for negligence and negligent deprivation 

of property. (Doc. 1, at 8-9). On April 25, 2022, Defendants filed a partial motion to dismiss 

Payne’s Fourteenth and First Amendment claims pursuant to Rule12(b)(6), as well as a brief 

in support. (Doc. 13; Doc. 14). On March 17, 2023, the Court granted Defendants’ partial 

motion to dismiss. (Doc. 17; Doc. 18). Specifically, the Court dismissed Payne’s Fourteenth 

Amendment claim with prejudice and First Amendment claim without prejudice. (Doc. 17; 

Doc. 18).

Payne filed an amended complaint on April 19, 2023. (Doc. 19). In his amended 

complaint, Payne re-alleged that Defendants misplaced and/or confiscated his personal 

property, including legal materials, which prevented his meaningful access to the courts.1

(Doc. 19, ¶¶ 12-15). On May 1, 2023, Defendants again moved to dismiss Payne’s amended 

complaint, and on March 29, 2024, this Court granted Defendants’ second motion to dismiss. 

(Doc. 21; Doc. 26; Doc. 27). Specifically, this Court dismissed the First Amendment claim 

again because Payne failed to allege facts that sufficiently showed that he suffered an actual 

injury and that no other remedy could be awarded for the purported loss of his legal claims. 

(Doc. 26). However, “out of an abundance of caution,” the undersigned granted Payne leave 

to file a second amended complaint. (Doc. 26, at 11).

1 Payne also attached copied pages from Department of Corrections (“DOC”) Policy 

DC-ADM 815 concerning the “Handling of Property for Transfers” and “Authorized 

Temporary Absence;” a copy of Payne’s Personal Property Inventory Form, dated February 

22, 2017; an affidavit from Randall H. Chumley, dated April 13, 2023; and an order from 

Civil Action No. 14-CV-2198, dated May 5, 2022, dismissing Payne’s Motion for Relief from 

Judgment under Fed. R. Civ. P. 60(b) for lack of subject matter jurisdiction. (Doc. 19, at 4-9). 

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Payne filed his second amended complaint on April 20, 2024. (Doc. 28). In his second 

amended complaint, Payne re-alleges that Defendants lost or confiscated his personal 

property, including legal materials, which prevented his meaningful access to the courts.2

(Doc. 28, ¶¶ 10-13). Specifically, Payne asserts that he was unable to “present sound 

arguments” and “perfect his argument for his application to file a second or successive habeas 

petition” because he did not have access to his legal materials. (Doc. 28, ¶ 13).

On June 18, 2024, Defendants filed a third motion to dismiss Payne’s second amended 

complaint for failure to state a claim and a brief in support of their motion on that same day. 

(Doc. 30; Doc. 32). Payne did not file a brief in opposition. He instead filed a letter on 

September 16, 2024 in a conclusory and vague fashion that Defendants were maliciously 

accusing him of crimes and intimidating him in retaliation for bringing the present action.3

(Doc. 34). Because Payne did not file a brief in opposition, the motion is deemed unopposed 

and ripe for disposition. However, in the interest of completeness and thoroughness, this 

Court will conduct a full analysis of Defendants’ arguments.

II. LEGAL STANDARDS

A. MOTION TO DISMISS

2 Payne also attached copied pages from Department of Corrections (“DOC”) Policy 

DC-ADM 815 concerning the “Handling of Property for Transfers” and “Authorized 

Temporary Absence;” a copy of Payne’s Personal Property Inventory Form, dated February 

22, 2017; an affidavit from Randall H. Chumley, dated April 13, 2023; and an order from 

Civil Action No. 14-CV-2198, dated May 5, 2022, dismissing Payne’s Motion for Relief from 

Judgment under Fed. R. Civ. P. 60(b) for lack of subject matter jurisdiction. (Doc. 19, at 4-9). 

3 To the extent that Payne seeks to assert new claims against Defendants through his 

letter filed on September 16, 2024, a brief in opposition or letter to the Court is not the proper 

vehicle with which to do so. If Payne would like to assert new civil claims, he must file a new 

complaint.

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Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move 

to dismiss for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 

12(b)(6). To assess the sufficiency of a complaint on a Rule 12(b)(6) motion, a court must first 

take note of the elements a plaintiff must plead to state a claim, then identify mere conclusions 

that are not entitled to the assumption of truth, and finally determine whether the complaint’s 

factual allegations, taken as true, could plausibly satisfy the elements of the legal claim. Burtch 

v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011). In deciding a Rule 12(b)(6) motion, 

the court may consider the facts alleged on the face of the complaint, as well as “documents 

incorporated into the complaint by reference, and matters of which a court may take judicial 

notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

After recognizing the required elements that make up the legal claim, a court should 

“begin by identifying pleadings that, because they are no more than conclusions, are not 

entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The plaintiff 

must provide some factual ground for relief, which “requires more than labels and 

conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell 

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[T]hreadbare recitals of the elements of 

a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. 

at 678. Thus, courts “need not credit a complaint’s ‘bald assertions’ or ‘legal conclusions’. . . ” 

Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat 

Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). Nor need a court assume that a 

plaintiff can prove facts that the plaintiff has not alleged. Associated Gen. Contractors of Cal. v. 

Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

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A court must then determine whether the well-pleaded factual allegations give rise to 

a plausible claim for relief. “A claim has facial plausibility when the plaintiff pleads factual 

content that allows the court to draw the reasonable inference that the defendant is liable for 

the misconduct alleged.” Palakovic v. Wetzel, 854 F.3d 209, 219-20 (3d Cir. 2017) (quoting 

Iqbal, 556 U.S. at 678) (internal quotation marks omitted); see also Sheridan v. NGK Metals 

Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010). The court must accept as true all allegations in 

the complaint, and any reasonable inferences that can be drawn therefrom are to be construed 

in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 

1250, 1261 (3d Cir. 1994). This “presumption of truth attaches only to those allegations for 

which there is sufficient factual matter to render them plausible on their face.” Schuchardt v. 

President of the U.S., 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation omitted). 

The plausibility determination is context-specific and does not impose a heightened pleading 

requirement. Schuchardt, 839 F.3d at 347. 

B. SECTION 1983

Payne asserts federal civil rights claims pursuant to 42 U.S.C. § 1983, which provides 

a private cause of action for violations of federal constitutional rights. The statute provides in 

pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or 

usage, of any State or Territory or the District of Columbia, 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 . . . .

42 U.S.C. § 1983. 

Section 1983 does not create substantive rights, but instead provides remedies for rights 

established elsewhere. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). To succeed on 

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a § 1983 claim, a plaintiff must demonstrate that the defendant, acting under color of state 

law, deprived the plaintiff of a right secured by the United States Constitution. Mark v. Borough 

of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995).

III. DISCUSSION

A. FIRST AMENDMENT ACCESS TO COURT CLAIM

Defendants move to dismiss Payne’s second amended complaint for three reasons: (1) 

because Payne has not adequately described his underlying claim such that he can show “that 

it is more than hope of relief if the legal documents were returned”; (2) because Payne fails to 

allege an actual injury; and (3) because Payne has an adequate remedy to pursue his

underlying claim. (Doc. 32, at 4-7). Specifically, Defendants assert that Payne merely alleges 

that his criminal case was dismissed because he could not “present sound arguments” without 

his legal materials, but “does not provide the underlying facts, the history of the underlying 

case, and the issues his legal paperwork would potentially address.” (Doc. 32, at 4). 

Defendants further argue that Payne was not injured because his second or successive habeas 

petition with the Third Circuit was denied “both because his arguments lack merit (as 

explained by the District Court) and because he could have raised these arguments on 

appeal,” and Payne chose not to file a petition for review of that decision. (Doc. 32, at 6). 

Last, Defendants contend that Payne has not established that the underlying claims could not 

be pursued due to Defendants’ actions because the legal material he seeks “is either public 

record or is an affidavit that can be drafted and executed again.” (Doc. 32, at 6-7). To reiterate, 

Payne has not submitted a brief in opposition or any filing directly responding to Defendants’ 

arguments.

Prisoners maintain a “fundamental constitutional right of access to the courts,” 

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embodied in the First and Fourteenth Amendments. Lewis v. Casey, 518 U.S. 343, 346 (1996)

(quoting Bounds v. Smith, 430 U.S. 817, 828 (1977)). Similarly, a pretrial detainee has a right 

of access to the courts with respect to legal assistance and participation in preparing a defense 

against pending criminal charges. See, e.g., Prater v. City of Phila., 542 F. App’x 135, 136-37 (3d 

Cir. 2013) (not precedential); May v. Sheahan, 226 F.3d 876, 883-84 (7th Cir. 2000). Where, 

as here, the prisoner asserts that defendants' actions have inhibited his opportunity to present 

a past legal claim, he must show (1) he suffered an actual injury—that is, that he lost a chance 

to pursue a “nonfrivolous” or “arguable” underlying claim because of the alleged interference; 

and (2) he has no other “remedy that may be awarded as recompense” for the lost claim other 

than in the present denial-of-access suit. Christopher v. Harbury, 536 U.S. 403, 415 (2002); see 

also Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008).

Payne’s second amended complaint does not include new allegations or specifications 

sufficient to cure the deficiencies outlined in this Court’s dismissal of his first amended 

complaint. (Doc. 26; Doc. 28). Payne’s second amended complaint is different from his first 

in two ways. First, Payne elaborates on his “actual injury” by alleging that “he has to submit 

copies of his previous 2254 applications, court opinions and orders,” which are no longer in 

his possession, and he also does not have the exculpatory affidavit of Leonard Way, which 

he contends would establish his § 2244 claim. (Doc. 28, at 6). Second, Payne alleges that there 

is no available remedy for his ability to access the courts because if he had “been in possession 

of his legal materials he could have made to [sic] proper corrections to the previous petition 

filed.” (Doc. 28, at 6-7).

Again, even with these new allegations, Payne has not demonstrated an actual injury 

(i.e., a lost, nonfrivolous legal claim) or the unavailability of an adequate remedy. Betts v.

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Varner, No. 1:21-CV-01309, 2022 WL 987888, at *5 (M.D. Pa. Mar. 31, 2022) (dismissing 

plaintiff’s First Amendment claim on the grounds that plaintiff failed to allege that he suffered 

an actual injury, (i.e., a lost, nonfrivolous legal claim), facts showing that he has no other

remedy for the purported loss, and how the failure to turn over a single letter

unconstitutionally impinged on his access to the courts).

4 While Payne now contends in a 

conclusory fashion that “he cannot recreate the legal materials” needed to file a successive or 

second, he does not explain how. (Doc. 28, ¶ 17). As Defendants note, all courts opinions, 

his previous applications and court orders and opinions are public record, and Payne does not 

establish how or why he cannot execute another exculpatory affidavit. (Doc. 32, at 7). In sum, 

Payne’s allegations fall short of establishing that he lost the opportunity to pursue a nonfrivolous or arguable underlying legal claim and that no other remedy exists, such as accessing 

the materials through the public record and executing another affidavit. Betts, 2022 WL 

987888, at *5; see Woodell v. Pa. D.O.C. Sec'y of Corr., No. CV 18-4430, 2020 WL 2841380, at 

4 This Court explained in detail why Payne’s amended complaint was insufficient in 

its Memorandum addressing Defendants’ second motion to dismiss. (Doc. 26). It will not 

repeat that reasoning in its entirety here, as it remains unchanged. To summarize, Payne’s 

claims were deficient because “Payne has not alleged sufficient facts to suggest that his 

inability to use his lost legal materials, including the exculpatory affidavit from Leonard Way, 

affected the outcome of [his underlying case] or that the court denied his motion in part due 

to his inability to access the materials.” Payne v. Wyatt, No. 3:21-CV-01896, 2024 WL 

1356686, at *5 (M.D. Pa. Mar. 29, 2024). Payne’s denial of post-conviction relief was not 

sufficiently related to his loss of legal materials to satisfy the actual injury prong because he 

did not allege that he was “unable to file a second or successive habeas petition with the Third 

Circuit” due to the loss of his legal materials. Payne, 2024 WL 1356686, at *5. In fact, the 

Eastern District of Pennsylvania's May 5, 2022, Order, dismisses Payne's Rule 60(b) motion

for relief from judgment without prejudice to his right to file an application for a second or 

successive habeas petition with the Third Circuit. (Doc. 19, at 9); Payne v. Bickell, No. 14-CV2198 (E.D. filed Apr. 14, 2014), ECF. No. 51, ¶ 1. Pane failed to seek review. Thus, it does 

not appear that Payne’s underlying action or Rule 60(b) motion was in any way impacted by 

the alleged confiscation of his legal materials.

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*8 (E.D. Pa. June 1, 2020), aff'd sub nom. Rancourt Little Mountain Woodell v. Wetzel, No. 20-

3235, 2022 WL 17424287 (3d Cir. Dec. 6, 2022) (concluding pro se plaintiff failed to allege

actual injury where he failed to allege that the damaged or lost legal materials affected his 

ability to file the Rule 60(b) motion or that the court denied the motion in part due to the 

impact of his inability to access these materials); Betts, 2022 WL 987888, at *4 (holding that 

plaintiff’s First Amendment access to the courts claim was insufficient because plaintiff did 

not allege any facts that he suffered any actual injury, or facts showing that he has no other 

remedy for the purported loss). Accordingly, Defendants’ third motion to dismiss Payne’s

second amended complaint is GRANTED. (Doc. 30).

B. LEAVE TO AMEND

The Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure 

to state a claim, the district court must permit a curative amendment unless an amendment 

would be inequitable or futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 

2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000). The Third Circuit has also 

acknowledged that a district court has “substantial leeway in deciding whether to grant leave 

to amend.” Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000). The Court does not find, at this 

juncture, that amendment is warranted. Payne has previously been granted leave to amend 

and has failed to cure the deficiencies outlined herein. (Doc. 26). Additionally, he failed to 

file a brief in opposition to the motion to dismiss, leaving the motion unopposed. As such, 

the Court finds that granting further leave to amend would be inequitable or futile. See Bolus 

v. Gaughan, No. 3:21-CV-01315, 2023 WL 9103093, at *5 (M.D. Pa. Dec. 13, 2023), report 

and recommendation adopted, No. 3:21-CV-001315, 2024 WL 54113 (M.D. Pa. Jan. 4, 2024)

(denying leave to amend when a pro se plaintiff was previously granted leave to amend and 

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also failed to file a brief in opposition to the motion to dismiss).

IV. CONCLUSION

Based on the foregoing, Defendants’ motion to dismiss (Doc. 30) is GRANTED. 

Payne’s second amended complaint is DISMISSED. (Doc. 28). The Clerk of Court will be 

directed to CLOSE this case.

An appropriate Order follows.

BY THE COURT:

Dated: January 21, 2025 s/ Karoline Mehalchick KAROLINE MEHALCHICK

United States District Judge

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