Allen Kelly v. York Cty Prison , 325 F. App'x 144 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
4-27-2009
Allen Kelly v. York Cty Prison
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-4512
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"Allen Kelly v. York Cty Prison" (2009). 2009 Decisions. Paper 1473.
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BLD-161 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-4512
___________
ALLEN KELLY,
Appellant
v.
YORK COUNTY PRISON
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 08-cv-1813)
District Judge: Honorable James F. McClure, Jr.
____________________________________
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
April 16, 2009
Before: McKEE, FISHER and CHAGARES, Circuit Judges
(Filed: April 27, 2009 )
___________
OPINION
___________
PER CURIAM
Allen Kelly, a Pennsylvania state prisoner proceeding pro se, appeals from the
District Court’s dismissal of his complaint pursuant to 28 U.S.C. § 1915(e). For the
reasons stated below, we will dismiss this appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).
Kelly filed a complaint in the United States District Court for the Middle District
of Pennsylvania alleging that the York County Prison violated his civil rights when it:
(1) denied him free photocopies of legal documents relating to his criminal proceedings as
well as well as a complaint he initiated before the Disciplinary Board of the Pennsylvania
Supreme Court; (2) refused to provide him with sufficient paper and envelopes; and (3)
failed to place a photocopying machine in the prison library as well as stock the library
with sufficient paper. The District Court granted Kelly’s motion to proceed in forma
pauperis and later dismissed his complaint pursuant to 28 U.S.C. § 1915(e).
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Because
Kelly has been granted in forma pauperis status pursuant to 28 U.S.C. § 1915, we review
this appeal for possible dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). An appeal may
be dismissed if it has no arguable basis in law or fact. See Neitzke v. Williams, 490 U.S.
319, 325 (1989).
III.
The District Court correctly determined that Kelly’s claim that his constitutional
rights were violated when he was denied free photocopies is without merit.1 Prisoners do
1
In addition to dismissing Kelly’s claims against the prison on the merits, the
District Court, citing Fischer v. Cahill, 474 F.2d 991, 992 (3d Cir. 1973), also determined
that the prison was immune from Kelly’s lawsuit under the Eleventh Amendment because
it is not a “person” within the meaning of § 1983. However, because we presume Kelly
could have amended his complaint to name a proper, individual defendant, we review the
appropriateness of the District Court’s dismissal of Kelly’s claims on the merits.
2
not have a right to free photocopies for use in lawsuits. See Johnson v. Moore, 948 F.2d
517, 521 (9th Cir. 1991); see also Harrell v. Keohane, 621 F.2d 1059, 1061 (10th Cir.
1980). In addition, while inmates have a constitutional right of access to the courts,
which, in some situations, may implicate prison law libraries, see Bounds v. Smith, 430
U.S. 817, 821 (1977), an inmate must show that he was actually injured by the alleged
denial of access in order to establish a First Amendment violation. Lewis v. Casey, 518
U.S. 343, 350 (1996). Such an injury would occur, for example, if an inmate “was so
stymied by inadequacies of the law library that he was unable even to file a complaint.”
Id. at 351; see also Oliver v. Fauver, 118 F.3d 175, 177 (3d Cir. 1997) (defendants’
actions resulted in the “loss or rejection of a legal claim.”) In his complaint, Kelly
acknowledged that he is given a supply of paper and envelopes each month. Furthermore,
he does not claim that he was denied use of the prison law library or that he has been
unable to meet any court-imposed deadlines as a result of the library’s alleged lack of
amenities.
Accordingly, for the reasons given, we will dismiss this appeal pursuant to 28
U.S.C. § 1915(e)(2)(B)(I).
3