2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-28-2009

Hillard Winn v. Dept of Corr

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-1653

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Recommended Citation

"Hillard Winn v. Dept of Corr" (2009). 2009 Decisions. Paper 924.

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CLD-232 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-1653

___________

HILLARD M. WINN,

Appellant

v.

DEPARTMENT OF CORRECTIONS; CARROLL DANBERG, Commissioner of

Prisons; WARDEN PERRY PHELPS; TED MACCREANOR 

____________________________________

On Appeal from the United States District Court

for the District of Delaware 

(D.C. Civil No. 08-cv-00896)

District Judge: Honorable Gregory M. Sleet 

____________________________________

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

Before: RENDELL, HARDIMAN and NYGAARD, Circuit Judges

(Opinion filed: July 28, 2009)

_________

OPINION

_________

PER CURIAM

Hillard M. Winn, an inmate at the James T. Vaughn Correctional Center in

Smyrna, Delaware, appeals from a District Court order dismissing his pro se civil rights

action as frivolous. For the reasons that follow, we will summarily affirm.
2

In September 2006, Winn was convicted in a Delaware state court and sentenced

to a 30-year prison term. Since he has been in prison, Winn has filed a number of pro se

actions, including appeals of his conviction in state court and a habeas corpus petition in

federal court. He was successful in withdrawing a portion of his guilty plea, and his

habeas petition is currently pending in the District Court.

Winn is indigent. The prison in which he is serving his sentence has a policy for

the legal mailings of indigent prisoners like Winn. The prison advances the money for

postage, keeps track of how much postage it has advanced, and deducts that amount from

any funds that the prisoner obtains in the future. It does not provide free postage. Some

of the legal mail that Winn sent in connection with his direct appeal and his habeas

petition was returned because it did not contain a stamp or a “pay-to” slip.

On December 1, 2008, Winn filed a pro se civil rights action pursuant to 42 U.S.C.

§ 1983, alleging that the prison’s mail policy denied him access to the courts. He also

alleged that he had filed a grievance challenging this policy, but that the warden denied

the grievance and did not give him the opportunity for an appeal. Winn claims that this

was a violation of his equal protection and due process rights.

Before the defendants were served with the complaint, by order entered February

18, 2009, the District Court dismissed Winn’s complaint as frivolous pursuant to 28
 A complaint is subject to dismissal under § 1915(e)(2)(B) “where it lacks an arguable 1

basis in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989); see also Roman

v. Jeffes, 904 F.2d 192, 194 (3d Cir. 1990). This standard covers both “inarguable legal

conclusion[s]” and “fanciful factual allegation[s].” Neitzke, 490 U.S. at 325.

 We have jurisdiction to hear this appeal. 28 U.S.C. § 1291. We review the District 2

Court’s § 1915(e) dismissal without leave to amend for abuse of discretion. Denton v.

Hernandez, 504 U.S. 25, 33 (1992). To the extent that the District Court engaged in the

choice, application, and interpretation of the law, our review is plenary. Deutsch v.

United States, 67 F.3d 1080, 1083 (3d Cir. 1995). 

3

U.S.C. § 1915(e)(2)(B). The District Court also concluded that amending the complaint 1

would be futile. Winn filed a timely notice of appeal.2

I.

Prisoners have a fundamental right to access the courts. Lewis v. Casey, 518 U.S.

343, 346 (1996). However, a prisoner making an access-to-the-courts claim is required to

show that the denial of access caused actual injury. Id. at 352-53. Actual injury occurs

when a prisoner demonstrates that a “nonfrivolous” and “arguable” claim was lost

because of the denial of access to the courts. Christopher v. Harbury, 536 U.S. 403, 415

(2002). 

Here, Winn alleged that his legal mail was returned to him because it did not have

postage or a “pay-to” stamp. Even construing this claim with the liberality with which we

read pro se complaints, see Haines v. Kerner, 404 U.S. 519, 520 (1972), Winn has not

made out an access-to-the-courts claim. In his argument in support of appeal, Winn

claimed that the returned mail caused his legal communications to be delayed, and that

this delay affected his cases. We note, however, that Winn prevailed in his attempt to
4

withdraw a portion of his guilty plea. In addition, the docket sheet for his habeas corpus

petition does not suggest that any of his filings were rejected as untimely; indeed, Winn

has filed five letters and three motions in that case. Thus, Winn has not satisfied the

actual injury requirement. 

II. 

We next consider the argument that the warden violated Winn’s equal protection

and due process rights by refusing to allow an appeal to the grievance. “[T]he filing of

prison grievances is a constitutionally protected activity.” Davis v. Goord, 320 F.3d 346,

352-53 (2d Cir. 2003). However, “[w]hen the claim underlying the administrative

grievance process involves a constitutional right, the prisoner’s right to petition the

government for redress is the right to access the courts, which is not compromised by the

prison’s refusal to entertain his grievance.” Flick v. Alba, 932 F.2d 728, 729 (11th Cir.

1991). Here, the warden’s refusal to allow the appeal would allow Winn to overcome an

affirmative defense of exhaustion. See 42 U.S.C. § 1997e(a); Camp v. Brennan, 219 F.3d

279, 281 (3d Cir. 2000) (noting that a prison need only exhaust the administrative

remedies “as are available”). However, the denial of an appeal does not in itself give rise

to a constitutional claim, as Winn is still free to bring a civil rights claim in District Court,

as he did here. See Flick, 932 F.2d at 729. The District Court properly dismissed these
 We agree with the District Court that any attempt by Winn to amend his claims 3

would have been futile. See Oliver v. Fauver, 118 F.3d 175, 178 (3d Cir. 1997).

5

claims. 

3

III.

For the foregoing reasons, we conclude that this appeal presents no substantial

question. Accordingly, we will summarily affirm the judgment of the District Court.