2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-1-2011

Walter Tormasi v. George Hayman

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-1772

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PSM-207 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 11-1772

___________

WALTER A. TORMASI, in his individual capacity and on behalf

of Adavanced Data Solutions Corporation as its

Representative Ad Prosequendam,

Appellant

v.

GEORGE W. HAYMAN, Department of Corrections (DOC) Commissioner; JAMES 

BARBO, DOC Director of Division of Operations; MICHELLE RICCI, New Jersey 

State Prison (NJSP) Administrator; JEFFREY BELL, NJSP Associate Administrator; 

JAMES DRUMM, NJSP Associate Administrator; DONALD MEE, JR., NJSP Associate 

Administrator; CHARLES WARREN, NJSP Associate Administrator; DEREK 

BUTLER, Special Investigations Division (SID) Investigator; DOLCE, (First Name 

Unknown), SID Investigator; HARRISON, (First Name Unknown), SID Investigator; 

MAGINNIS, (First Name Unknown), SID Investigator; VICTOR SIERRA, SID 

Investigator; VINCENT WOJCIECHOWICZ, SID Investigator

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 08-cv-05886)

District Judge: Honorable Joel A. Pisano

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

August 26, 2011

Before: AMBRO, HARDIMAN and VAN ANTWERPEN, Circuit Judges

(Opinion filed: September 1, 2011)

___________

OPINION
2

___________

PER CURIAM

Walter A. Tormasi, a state prisoner proceeding pro se, appeals from the order of 

the District Court granting the defendants‟ motions to dismiss. For the following reasons, 

we will affirm.

In December 2008, Tormasi filed a complaint pursuant to 42 U.S.C. § 1983 on 

behalf of himself and Advanced Data Solutions Corporation (“ADS”), an “intellectualproperty holding company” for which Tormasi is the “sole shareholder” and “authorized 

agent.” Among other allegations, Tormasi asserted that his constitutional rights were 

violated when prison officials confiscated an unfiled patent application titled “Geometric 

Optical Apparatus Featuring Antiglare Properties.”1 In the complaint, Tormasi stated that 

he “desires to file provisional and non-provisional patent applications with [the United 

States Patent and Trademark Office (“USPTO”)] based on the invention disclosed in his 

. . . confiscated application,” “that the confiscated provisional application is [his] only 

copy,” and that he is “unable to file patent applications with [USPTO] and thus unable to 

initiate patent prosecution proceedings . . . .” Tormasi further alleged that he “intends to 

assign his confiscated provisional application and any derivate patents to plaintiff ADS 

. . . .” 

 

1 According to Tormasi, the defendants also confiscated miscellaneous corporate 

paperwork, patent prosecution documents, several floppy diskettes, and 

correspondence between himself and his attorney. On appeal, however, Tormasi 

challenges only the confiscation of the unfiled patent application.
3

Before serving the defendants with a copy of the complaint, the District Court 

dismissed without prejudice all claims asserted by Tormasi on behalf of ADS, noting that 

a corporation may appear in federal court only through licensed counsel. With respect to 

the allegations concerning the confiscation of Tormasi‟s patent application, the District 

Court concluded that Tormasi failed to state a claim, as he lacked a constitutional right to 

conduct a business while incarcerated. The District Court also rejected Tormasi‟s claims 

that he had been denied access to the courts under the First Amendment, that he had been 

deprived of property in violation of the Fifth Amendment, and that he had been denied 

due process under the Fourteenth Amendment. With the District Court‟s permission, 

Tormasi filed an amended complaint. He reasserted the claims from the initial complaint 

and, for the first time, characterized the confiscation of the unfiled patent application as a 

violation of his right to freedom of speech under the First Amendment. The defendants

were served with the amended complaint and filed a motion under Federal Rule of Civil 

Procedure 12(b)(6). The District Court granted the motion, holding that Tormasi failed to 

correct the deficiencies identified in the prior opinion. With respect to the newly-asserted 

First Amendment claim, the District Court concluded that a prison regulation prohibiting 

inmates from operating a business was valid. Tormasi appealed. 

We have appellate jurisdiction under 28 U.S.C. § 1291. We exercise plenary 

review over the District Court‟s sua sponte dismissal and its order granting the motion to 

dismiss for failure to state a claim. Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 

187, 190 (3d Cir. 2009); Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). “In 

deciding a motion to dismiss, all well-pleaded allegations of the complaint must be taken 
4

as true and interpreted in the light most favorable to the plaintiffs, and all inferences must 

be drawn in favor of them.” McTernan v. City of York, 577 F.3d 521, 526 (3d Cir. 2009) 

(internal citation and quotation marks omitted). To withstand a Rule 12(b)(6) motion to 

dismiss, “a complaint must contain sufficient factual matter, accepted as true, to „state a 

claim to relief that is plausible on its face.‟” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

In order to establish a § 1983 claim, a plaintiff must demonstrate that: (1) the 

conduct complained of was committed by persons acting under color of state law; and (2) 

the conduct violated a right, privilege, or immunity secured by the Constitution or laws of 

the United States. Galena v. Leone, 638 F.3d 186, 196-97 (3d Cir. 2011). Section 1983 

does not create any new substantive rights, but instead provides a remedy for the 

violation of a federal constitutional or statutory right. Dique v. New Jersey State Police,

603 F.3d 181, 185 (3d Cir. 2010) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 816 

(1985)). Tormasi states that he is raising only one issue on appeal: whether he 

“possesses the right of access to the [USPTO], either under the „laws‟ of the United 

States (namely, Title 35, U.S.C.) or the First, Fifth, or Fourteenth Amendments.”2 

 

2

The defendants argue that the dismissal of the amended complaint should be 

affirmed because Tormasi is asserting the rights of ADS, which, because it is a 

corporation, must be represented by licensed counsel in federal court. Rowland v. 

California Men‟s Colony, 506 U.S. 194, 202 (1993) (stating that “a corporation 

may appear in the federal courts only through licensed counsel.”). We disagree. 

Tormasi brings this appeal on his own behalf and challenges the confiscation of 

his unfiled patent application, which had not been assigned to ADS.
5

Tormasi claims that the confiscation of his patent application interfered with his 

statutory right to file to apply for a patent and violated his First Amendment right to free 

speech.3 Prisoners have a First Amendment right to communicate with others outside the 

prison. See Thornburgh v. Abbott, 490 U.S. 401, 407 (1989). It is well-recognized, 

however, that the rights of prisoners “must be exercised with due regard for the 

„inordinately difficult undertaking‟ that is modern prison administration.” Id. (quoting 

Turner v. Safley, 482 U.S. 78, 85 (1987)). Thus, prison authorities may regulate inmate 

speech so long as the regulations are reasonably related to legitimate penological 

interests. See Turner, 482 U.S. at 89. Indeed, the fact of incarceration and the valid 

penological objectives of deterrence of crime, rehabilitation of prisoners, and institutional 

security justify limitations on the exercise of constitutional rights by inmates. See

DeHart v. Horn, 227 F.3d 47, 50-51 (3d Cir. 2000) (en banc). 

Here, the defendants confiscated Tormasi‟s patent application pursuant to a prison 

regulation that prohibited “commencing or operating a business or group for profit or 

commencing or operating a nonprofit enterprise without the approval of the 

 

3

Tormasi also cited his First Amendment right to petition the government for 

redress of his grievances, which includes as an aspect a right of access to the 

courts. Woodford v. Ngo, 548 U.S. 81, 122 (2006) (Stevens, J., dissenting). The 

right of access to the courts, however, is limited to cases in which inmates “attack 

their sentences, directly or collaterally, and . . . challenge the conditions of their 

confinement. Impairment of any other litigating capacity is simply one of the 

incidental (and perfectly constitutional) consequences of conviction and 

incarceration.” Lewis v. Casey, 518 U.S. 343, 355 (1996). Because Tormasi‟s 

complaints about his ability to pursue patent matters do not fall into one of these 

categories, we agree that he failed to state an access to the courts claims. Cf.

Simmons v. Sacramento Cnty. Super. Ct., 318 F.3d 1156, 1159-60 (9th Cir. 2003) 
6

Administrator.” N.J.A.C. 10A:4-4.1(.705). Tormasi does not contend that he has a 

constitutional right to conduct business activities while incarcerated. See French v. 

Butterworth, 614 F.2d 23, 24 (1st Cir. 1980) (rejecting prisoner‟s claim that he had a 

constitutional right to engage in business activities). Nor does Tormasi allege that the 

prison regulation lacks a reasonable relation to legitimate penological interests. AbuJamal v. Price, 154 F.3d 128, 135 (3d Cir. 1998) (stating that “[t]here are no doubt many 

businesses or professions, which if practiced within the prison, would necessarily burden 

prison officials or other inmates.”). Instead, he suggests that his patent application does 

not implicate business activities. While we generally agree that the submission of a 

patent application does not involve a business activity in all circumstances, see Jerry-El 

v. Beard, No. 10-3031, 2011 WL 989856, at *2 (3d Cir. Mar. 22, 2011) (stating that “it 

does not appear that exercising [the] right [to register a copyright] necessarily constitutes 

engaging in a business activity”), the record in this case indicates that Tormasi‟s conduct 

falls within the ambit of that prohibited by the regulation.

In his complaint, Tormasi explained that he had previously filed with the USPTO 

two patent applications bearing the title “striping data simultaneously across multiple 

platter services.” He then assigned to ADS all his interest in the patent applications. In 

2008, the USPTO issued a patent, which lists Tormasi as the inventor and ADS as the 

assignee. Based on the confiscation of paperwork pertaining to the patent and ADS, 

Tormasi alleged that he was “unable to directly or indirectly benefit from his intellectual-

 

(explaining that “a prisoner has no constitutional right of access to the courts to 

litigate an unrelated civil [personal injury] claim”). 
7

property assets, either by selling all or part of ADS; by exclusively or non-exclusively 

licensing [the] patent to others; by using ADS or [the] patent as collateral for obtaining 

personal loans or standby letters of credit; or by engaging in other monetization 

transactions involving ADS or its intellectual-property assets.” Notably, Tormasi stated 

that he “intends to assign his confiscated provisional application and any derivate patents 

to plaintiff ADS . . . .” Under these circumstances, we conclude that the District Court 

did not err in holding that Tormasi‟s intentions regarding the unfiled patent application 

qualified under the regulation as “commencing or operating a business or group for 

profit.” Accordingly, we conclude that the confiscation of the unfiled patent application 

did not violate his statutory or constitutional rights. 

Tormasi also alleges that the Fifth and Fourteenth Amendments provide him with 

“the right of access to [the] USPTO.” We disagree, as neither Amendment provides a 

“right of access” in these circumstances. Those Amendments do, however, protect 

deprivations of property, although “determining what constitutes the impairment of a 

protected property interest for purposes of due process . . . is a distinct inquiry from 

determining what constitutes a taking for purposes of the Takings Clause. Burns v. PA 

Dep‟t of Corr., 544 F.3d 279, 285 n.3 (3d Cir. 2008). The Fifth Amendment, made 

applicable to the states through the Fourteenth Amendment, proscribes the taking of 

private property for public use without just compensation. U.S. Const. amend. V, XIV; 

Cowell v. Palmer Twp., 263 F.3d 286, 290 (3d Cir. 2001). Because Tormasi‟s property

was confiscated as contraband pursuant to New Jersey statute and regulation, he is not 

entitled to compensation pursuant to the Takings Clause of the Fifth Amendment. See
8

Savko v. Rollins, 749 F. Supp. 1403, 1412-14 (D. Md. 1990) (holding that, under prison 

regulation, “the State may confiscate property not for the beneficial use of the public, but 

rather as a quintessential police power function: the orderly and secure operation of the 

State‟s prisons”). In addition, Tormasi failed to state a claim for a deprivation of 

property without due process of law under the Fourteenth Amendment because an

adequate post-deprivation remedy for the loss exists. Hudson v. Palmer, 468 U.S. 517, 

533 (1984); see also Tillman v. Lebanon Cnty. Corr. Facility, 221 F.3d 410, 422 (3d Cir.

2000) (holding that prison‟s grievance program and internal review provide an adequate 

post-deprivation remedy to satisfy due process). 

For the reasons given, we will affirm the judgment of the District Court.