Walter Tormasi v. George Hayman , 443 F. App'x 742 ( 2011 )


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  • PSM-207                                                   NOT PRECEDENTIAL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
    ___________
    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 “intellectual-
    property 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.
    2
    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
    3
    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.
    4
    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)
    5
    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. Abu-
    Jamal 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”).
    6
    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
    7
    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.
    8