Christopher Mbewe v. Theresa Delbalso

• Court: Court of Appeals for the Third Circuit
• Decided: February 9, 2024
• Docket: 23-2054
• Status: Unpublished

Opinion

ALD-055 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 23-2054 ___________

CHRISTOPHER F. MBEWE Appellant

v.

THERESA DELBALSO, Former Superintendent; MICHAEL J. DUNKLE; C.O. CRAWFORD; CHAPMAN, C.O.; & LT. WALL ____________________________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 4:21-cv-00654) District Judge: Honorable Matthew W. Brann ____________________________________

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 January 18, 2024

Before: HARDIMAN, MONTGOMERY-REEVES, and NYGAARD, Circuit Judges

(Opinion filed: February 9, 2024) _________

OPINION * _________

PER CURIAM

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Plaintiff Christopher Mbewe appeals pro se and in forma pauperis from the

District Court’s order dismissing his third amended complaint. 1 We will summarily

affirm.

Mbewe is incarcerated at the State Correctional Institution, Mahanoy (SCI

Mahanoy). Mbewe claimed that the SCI Mahanoy officials committed constitutional

violations in their handling of his legal mail on six occasions between December 2019

and July 2021. He averred that prison officials fabricated evidence that his legal mail

tested positive for drugs to unlawfully open and read the mail outside of his presence, and

that the prison officials wrongfully confiscated legal mail that was critical to his state

post-conviction proceedings. Mbewe also broadly asserted that there is an ongoing

pattern and practice at SCI Mahanoy of prison officials interfering with legal mail or

tacitly condoning such interference.

The District Court dismissed the third amended complaint with prejudice for

failure to state a claim. Mbewe sought reconsideration of the dismissal, which the District

Court denied. This appeal followed.

1 Mbewe filed his initial complaint in April 2021. He amended that complaint twice. The District Court dismissed the second amended complaint and provided Mbewe a limited opportunity to file a third amended complaint. The third amended complaint is substantially similar to the second amended complaint but attached additional exhibits. DCT No. 69.

2 We have jurisdiction pursuant to 28 U.S.C. § 1291 and exercise plenary review

over the District Court’s dismissal of Mbewe’s third amended complaint. See Newark

Cab Ass’n v. City of Newark, 901 F.3d 146, 151 (3d Cir. 2018). We construe Mbewe’s

pro se complaint liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).

We may summarily affirm the District Court’s judgment if the appeal presents no

substantial question, see 3d Cir. L.A.R. 27.4 and I.O.P. 10.6, and must dismiss the appeal

under 28 U.S.C. § 1915(e)(2)(B)(i) if it is frivolous.

To state a claim under 42 U.S.C. § 1983, “a plaintiff must allege the violation of a

right secured by the Constitution and laws of the United States, and must show that the

alleged deprivation was committed by a person acting under color of state law.” West v.

Atkins, 487 U.S. 42, 48 (1988). Like the District Court, we construe the third amended

complaint to assert claims of (1) First and Fourteenth Amendment denial of access to the

courts; (2) First Amendment interference with legal correspondence in violation of free-

speech rights; and (3) Fourteenth Amendment deprivation of property without due

process of law. Upon careful consideration, we agree with the District Court’s assessment

of the third amended complaint.

A. Denial of Access to the Courts

Mbewe avers that his sister was contacted in April 2019 by an individual who

claimed to witness the crime for which Mbewe was convicted. This witness informed

Mbewe’s sister that she would have testified that Mbewe was innocent, but that she did

3 not come forward earlier due to instructions provided by the prosecuting attorney.

According to Mbewe, the witness mailed a written witness statement directly to Mbewe,

but the mail was intercepted, opened, and destroyed by prison officials. Mbewe claims, as

a result, that he was unable to timely file a Post-Conviction Relief Act (PCRA) petition in

relation to this evidence,

Where, as here, a prisoner asserts that prison officials’ actions have inhibited his

opportunity to present a collateral challenge to a conviction, the prisoner must show (1)

“an ‘actual injury’—that they lost a chance to pursue a ‘nonfrivolous’ or ‘arguable’

underlying claim”; and (2) the absence of any other remedy for the lost claim than in the

present denial of access suit. Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008). In

addition, “[t[he complaint must describe the underlying arguable claim well enough to

show that it is ‘more than mere hope,’ and it must describe the ‘lost remedy.’” Id. at 205-

06 (internal quotation marks and citation omitted)). We agree with the District Court that

Mbewe failed to plausibly allege these elements.

We reiterate the District Court’s belief that Mbewe failed to plausibly demonstrate

that the purported interference with this mail prevented him from seeking PCRA relief or

otherwise caused such a lengthy delay as to elapse the entirety of the limitations period to

file a PCRA petition or seek an exception to the same. Nevertheless, if we assume the

truth of Mbewe’s assertion that the claimed mail interference caused his failure to timely

file a PCRA petition, it cannot be said that Mbewe adequately described the “lost

4 remedy.” See 42 Pa. Cons. Stat. Ann. § 9545(b)(1)(i) (excepting claims not previously

raised as a result of government interference from the PCRA one-year limitations period).

And Mbewe has otherwise failed to assert any actual injury caused by the purported mail

interference. Indeed, Mbewe’s third amended complaint lacks any factual averment

indicating that he sought and was denied relief—either through state PCRA proceedings

or federal habeas—based on the purportedly new evidence.

Further, as the District Court pointed out, Mbewe’s third amended complaint

failed to identify any specific conduct or personal involvement in the alleged wrongdoing

by any Defendant. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (noting

that a plaintiff must allege that the defendants had “personal involvement in the alleged

wrongs,” which can be shown through “allegations of personal direction or of actual

knowledge and acquiescence” to state a claim under § 1983).

B. Interference with Legal Correspondence

Mbewe alleges that privileged and confidential legal mail was sent to him on six

occasions between December 2019 and July 2021. He claims that prison officials seized,

opened, and copied his legal mail outside of his presence and in violation of his First

Amendment free-speech rights. Mbewe identifies the at-issue mail as having been sent by

an attorney with the Pennsylvania Innocence Project (Delose), an attorney from the

Lewisburg Prison Project (Su Ming Yeh), and Defendants’ attorney (DiTomo). Mbewe

also asserts that, during the relevant time frame and to protect his rights, he mailed over

5 200 letters to organizations and agencies, but any answers received were intercepted,

copied, and destroyed by Defendants.

“Although the [Department of Corrections (DOC)] prohibits mail inspectors from

reading mail addressed to inmates except in special circumstances, constitutional

obligations require the DOC to take additional measures to ensure that legal mail remains

unread.” Fontroy v. Beard, 559 F.3d 173, 174 (3d Cir. 2009). As such, this Court has held

that a DOC policy that allows the opening of legal mail without the physical presence of

addressee inmates “deprives the expression of confidentiality and chills the inmates’

protected expression.” Jones v. Brown, 461 F.3d 353, 359 (3d Cir. 2006). However, the

fact that mail is from an attorney or a legal non-profit, even when that mail may include

confidential or privileged information, does not on its own require prison officials to label

it as legal mail that may only be opened in the presence of inmates. 2 See Fontroy, 559

F.3d at 175-77, 184; see also Bieregu v. Reno, 59 F.3d 1445, 1452, 1458 (3d Cir. 1995)

(holding that evidence of five instances of mail tampering, three of which the defendants

admitted, was enough to raise a genuine issue of material fact on whether there was an

unconstitutional “pattern and practice” of opening the plaintiff’s properly marked court

2 DOC has instituted a policy that requires the identification of an attorney or court “control number” on a mailing envelope for that mail to be considered legal correspondence that must be opened in the presence of an inmate. This Court has previously rejected a challenge to the constitutionality of that policy, see Fontroy, 559 F.3d at 183-84.

6 mail, but noting that “a single, inadvertent opening of properly marked legal mail outside

an inmate’s presence . . . may not infringe a prisoner’s right to free speech”), abrogated

on other grounds by Lewis v. Casey, 518 U.S. 343 (1996).

Here, Mbewe has not plausibly claimed that the mail at issue was legal mail that

cannot be opened outside of his presence. Mbewe does not aver the existence of an

attorney-client relationship between Mbewe and Delose or Su Ming Yeh, and it appears

that none existed. And, certainly, any mail sent to Mbewe from opposing counsel, while

legal in nature, is not privileged by virtue of an attorney-client relationship and does not

constitute legal mail for purposes of a First Amendment free-speech claim. More

importantly, Mbewe’s third amended complaint is devoid of any claim that the purported

legal mail was properly marked with an attorney control number in compliance with

DOC policy. See Fontroy, 559 F.3d at 175-77, 183-84. Accordingly, we agree that

Mbewe has failed to plausibly aver that prison officials, at any point, opened his legal

mail outside of his presence or otherwise implicated the First Amendment.

C. Deprivation of Property

To the extent Mbewe claims that prison officials wrongfully confiscated his mail

and other correspondence in violation of the Fourteenth Amendment, the District Court

correctly dismissed any such claims. See Hudson v. Palmer, 468 U.S. 517, 533 (1984)

(holding that negligent and intentional deprivations of property do not violate due process

if meaningful post-deprivation remedies are available). The prison grievance procedure

7 provides an adequate post-deprivation remedy, see, e.g., Tillman v. Lebanon Cnty. Corr.

Facility, 221 F.3d 410, 422 (3d Cir. 2000), and the existence of this post-deprivation

remedy forecloses Mbewe due process deprivation of property claim. 3 Mbewe can also

pursue common law remedies for any purported wrongful deprivation of his property.

For the foregoing reasons, the District Court did not err in dismissing Mbewe’s

third amended complaint with prejudice. Further amendment would be futile as Mbewe

has already had multiple opportunities to amend his pleadings. Moreover, we discern no

error in the District Court’s denial of Mbewe’s motion to reconsider its dismissal of the

third amended complaint.

Accordingly, the appeal does not present a substantial question. We will

summarily affirm the District Court’s order. See 3d Cir. L.A.R. 27.4 (2011); 3d Cir.

I.O.P. 10.6 (2018). To the extent Mbewe has requested appointment of appellate counsel,

that motion is denied.

3 Indeed, Mbewe indicated in his third amended complaint that he availed himself of the grievance procedure to challenge the alleged confiscation of his property.