1

BLD

- 010 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________
No. 10

- 2184

___________
DAMIEN M. SCHLAGER
,

Appellant

v.
JEFFREY BEARD, Ph.D. Secretary of Pennsylvania D.O.C.; BRIAN V. COLEMAN, Superi ntendent SCI

- Fayette; JOSEPH KREMPOSKI, Capt., SCI

- Fayette; ERIC JOHNSON, Lt. SCI

- Fayette;

STEVEN GATES, Deputy Superintendent SCI

- Fayette; JOSEPH TREMPUS, Capt., SCI

- Fayette; DANIEL HOOPER, Lt., SCI

- Fayette; A. YUHOUSE, c/o SCI

- Fayette; JASON HALLE Y, c/o SCI

- Fayette; ALBERT WOODS, c/o SCI

- Fayette; G. CARLSON, c/o SCI

- Fayette; A. SWITZER, c/o SCI

- Fayette; J. MEEKER, c/o SCI

- Fayette; MARY ANN KUSHNER, Assistant to Superintendent/Viseo Conference Coordinator/Grievance response Dept. SCI

- Fayette; RAYMOND J. SOBIA, Supervisory Superintendent, Western Region P.A.; DORINA VARNER, Chief Grievance Off.; RHONDA HOUSE, Grievance Coordinator SCI

- Fayette; DARLENE LINDERMAN, Mail Room Supervisor, SCI

- Fayette; CARL WALKER, Unit Manager 'E'

- Unit

SCI

- Fayette; HERBERT STANLEY REBERT, ESQ. D.A. York County PA; KATHERINE L. DOUCETTE, ESQ. A.D.A. York County PA

____________________________________ On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. C ivil No. 09

- 01231 )2 District Judge: Honorable Joy Flowers Conti

____________________________________ Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 October 15, 20 10

Before: SLOVITER, JORDAN & GREENAWAY, JR.
, Circuit Judges

(Opinion filed October 28, 2010 )

_________
OPINION

_________
PER CURIAM
Damien M. Schlager, a prisoner at the State Correctional Institution at Fayette in
Pennsylvania, appeals pro se from an order of the United States District Court for the
Western District of Pennsylvania dismissing his complaint. For the fo llowing reasons,
we will dismiss Schlager‟s appeal pursuant to 28 U.S.C. § 1915(e)(2) (B)

.
I.

Sch l a ger‟s pro se complaint is primar ily based upo n prison officials‟ confiscation

of certain UCC documents as contraband , both from his mail and aft er a search of his
prison cell. Schlager sough t to use those documents at a hearing in his state criminal case
to argue that he is entitled to release from prison , pursuant to the UCC, because he is a
“Secured Party Sovereign .” Schlager also named the District Attorney for York County
and an Assistant District Attorney as defendants, apparently based on his belief that they3

conspired with the named prison of ficials to deprive Schlager of his UCC materials. 1

The complaint asserts claims, pursuant to 42 U.S.C. § 1983, for violation of
Schlager‟s First and Fourteenth Amendment right s to access the courts, his Fourth
Amendment rights, and his Fourte enth Amendm ent due process rights. Sch lager also
alleges that the defendants ‟ conduct constitutes cruel and unusual punishment in violation
of the Eighth Amendment and that the defendants conspired against him based upon their
“hateful attitude towards a specific cl ass of people (Secured Party Sovereigns).” ( Compl.

¶ 66. ) Among other things , he seeks i mmediate release from prison, $ 3,000,000 in

damages from each defendant , and an injunction ordering the defendants to return his

documents

.
The defendants moved to dismiss and the matter was referred to a Magistrate
Judge, who recommended that the District Cour t grant the defendants‟ motions because
Schlager failed to state claims under the First, Eigh th, or Fourteenth Amendments, or for
conspiracy. The District Co urt adopted the Magistrate Judge‟s report and
recommendation and issued a supplemental memorandum order adding that Schlager also

had failed to state a Fourth Amendment claim. The District Court further concluded that

1 Schlager also alleges that “[s]ince [his] case was moved to the private side of the accounting ledger, A.D.A. Katherine Doucette was precluded from bringing the case/account back to the public side of the accounting ledg er by going to the media for an out

- cry for public help or pressure.” (Compl. ¶ 36.) To the extent that Schlager is taking issue with something the prosecutor said to the media, his allegations are incomprehensible.4

Heck v. Humphrey , 512 U.S. 477 (1994)
, barred Schlager‟s section 1983 lawsuit.
Schlager timely appealed.

II.
We have jurisdiction over thi s appeal pursuant to 28 U.S.C. § 1291. Because
Schlager has been granted in forma pauperis status pursuant to 28 U. S.C. § 1915, we
review this appeal for possible di smissal pursuant to 28 U. S.C. § 1915(e)(2)(B). An
appeal may b e dismissed under § 1915(e)(2)(B) if it has no arguable basis in law or fact.

Neitzke v. Williams , 490 U.S. 319, 325 (1989).
We will dismiss Schlager‟s appeal because it is has no a rguable basis in law

. 2 In

or der to succeed on his claim that the defendants denied him access to the courts
, Schlag er would have to establish “ (1) that [he] suffered an „actual injury‟

– t hat [he] lost
a chance to pursue a „nonfrivolous‟ or „arguable‟ und erlying claim; and (2) that [he] ha[d]

no other „ remedy th at may be awarded as recompense‟ for the lost claim other than in the
present denial of access suit. ” Monroe v. Beard , 536 F.3d 198, 205 (3d Cir. 2008)
(quoting Christopher v. Harbury , 536 U.S. 403 , 415 (2002)). As the Magistrate Judge
accurately noted, the argument that Schlager sought to pursue before the state court

– that
he is somehow entitled to release from prison because he is a “Secured Party Sovereign”

2 Alternatively, dismissal is appr opriate because, as noted by the prison officials in their Brief in Support of their Motion to Dismiss, Schlager failed to exhaust his administrative remedies since the grievances he filed with the prison were untimely. See Woodford v. Ngo , 548 U.S. 81 , 93 (2006) (“[W] e are persuaded that the PLRA exhaustion requirement requires proper exhaustion .”).5

– is “the epitome of frivolous.” ( R eport and Recommendation 3 , Feb. 12, 2010, ECF No.

49

. ) Furthermore, documents Schlager attached to his complaint reveal that, despite

defendants‟ confi scation of the UCC materials, Schlager did, in fact, present his argument
to the state court during his hearing. Accordingly, there is no possibility that Schlager

could succeed on his claim that the defendants denied him access to the courts.
Nor is there a legal basis for Schlager‟s other claims. Schlager‟s Fourth

Amendm ent and due process claims lack l egal bases because , respectively, “ the Fourth
Amendment proscription against unreasonable searches does not apply within the
confines of the prison cell
, ” Hudson v. Palmer , 468 U.S. 517 , 526 (1984), and the prison
grievance system provided Schlager with a n adequate post deprivation remedy

. See

Monroe , 536 F.3d at 210. Similarly, Schlager‟s Eighth Amendment claim lacks a basis in
law because the allegations of the complaint do not establish that the defendants ‟ conduct
“result[ed] in the denial of the min imal civilized measure of life‟s necessities.” 3 Farmer

v. Brennan , 511 U.S. 825, 834 (1994) (quotations omitted).
Schlager‟s conspiracy claim also lacks a legal basis

. Since Schlager cannot
establish any violation of his constitutional rights, it follows that he cannot establish a
conspiracy to violate those rights. See Ridgewood Bd. of Educ. v. N.E. ex rel. M.E. , 172
F.3d 238, 254 (3d Cir. 1999) (“ In order to prevail on a conspiracy claim under § 1983, a

3 In his responses to defendants‟ motions to dismiss, Schlager named several other amendments that defendants‟ conduct purportedly violated

– the Fifth, Sixth, and Thirteenth Amendments. We find no basis in law supporting any of those claims.6

plaintiff must prove that persons acting under co lor of state law conspired to deprive him
of a federally protected right. ”). To the extent that Schlager brings his conspiracy claim

under section 1985(3), he must establish “ (1) a conspiracy; (2) motivated by a racial or
class based discriminatory animus designed to deprive, directly or indirectly, any person
or class of persons to the equal protection of the laws; (3) an act in furtherance of the
conspiracy; and (4) an injury to person or property or the deprivation of any right or
privilege of a citizen of the United States. ” Lake v. Arnold , 112 F.3d 682 , 685 (3d Cir.

1997)

. As s ecured party s overeigns are not a protected class, there is no legal basis for
Schalger‟s conspiracy claim. 4

For the above reasons, we will dismiss Schlager‟s appeal pursuant t o 28 U.S.C. §

1915(e)(2) (B)

.

4 In light of our conclusion that Schlager‟s claims lack legal merit, we need not address the District Court‟s conclusion that those claims are barred by Heck

.