SHAMSIDIN ALI a/k/a Robert Saunders v. Adult Bureau Chief PAUL HOWARD

ALD-026 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1654
___________
SHAMSIDIN ALI
a/k/a Robert Saunders,
Appellant
v.
Adult Bureau Chief PAUL HOWARD; Warden RICK KEARNEY; Deputy Warden
MICHAEL DELOY; Lt. EARL MESSICK; Lt. JOSEPH JOHNSON; Cpl. FISHER;
THOMAS CARROLL; CORRECTIONAL MEDICAL SYSTEMS; JANE MORGAN;
ANTHONY J. RENDINA; Capt. C. SEGARS; Commissioner STANLEY TAYLOR
____________________________________
On Appeal from the United States District Court
for the District of Delaware
(D.C. Civil No. 05-cv-102)
District Judge: Honorable Sue L. Robinson
____________________________________
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
October 29, 2009
Before: SLOVITER, AMBRO and SMITH, Circuit Judges
(Opinion filed: November 16, 2009 )
_________
OPINION
_________

-- 1 of 11 --

2
PER CURIAM
Robert Saunders (a/k/a Shamsidin Ali), a Delaware state inmate, appeals pro se
from orders by the District Court granting the defendants’ motions for summary
judgment. Because the appeal is lacking in arguable legal merit, we will dismiss it under
28 U.S.C. § 1915(e)(2)(B).
I.
Before reviewing the District Court’s orders, we must first address appellees’
motion to vacate this Court’s order granting Ali in forma pauperis status. Appellees
move to revoke Ali’s in forma pauperis status by arguing that he has three strikes under
28 U.S.C. § 1915(g). In turn, this Court directed appellees to supplement their motion
with copies of any orders and/or opinions dismissing Ali’s prior complaints as frivolous
or for failure to state a claim upon which relief can be granted.
Appellees filed a supplement identifying two cases in which Ali’s civil actions
were dismissed: Ali v. Neal, D. Del. Civ. No. 91-cv-00697-LON and Ali v. Taylor, D.
Del. Civ. No. 00-cv-00804-RRM. We agree with appellees that each case constitutes a
strike against Ali for the purpose of § 1915(g). Appellees also argue that Sanders v.
Taylor, C.A. 01-2175, in which this Court affirmed the District Court’s dismissal in C.A.
No. 00-804-RRM, should count as a third strike against Ali. Pursuant to the language of
§ 1915(g), however, a prisoner is barred from bringing “an action or appeal in a court of
the United States that was dismissed on the grounds that it is frivolous, malicious, or fails

-- 2 of 11 --

Ali also alleged violations of Delaware state law, but failed to specify which laws.1
3
to state a claim upon which relief may be granted.” 28 U.S.C. § 1915(g) (emphasis
added). The plain language of the statute thus limits the application of a strike to a
dismissal, not an affirmance of a dismissal. See Jennings v. Natrona County Det. Ctr.
Med. Facility, 175 F.3d 775, 780 (10th Cir. 1999). Accordingly, Ali may not be
considered a third-striker for the purposes of this appeal.
However, after reviewing Ali’s litigation history and considering the lack of merit
in the instant appeal, we will dismiss the appeal under § 1915(e)(2). This dismissal
constitutes Ali’s third strike. Ali can no longer proceed in a civil action or appeal under
§ 1915 without prepayment of fees unless he demonstrates that he is under imminent
danger of serious physical injury. 28 U.S.C. § 1915(g).
II.
Turning to the merits of the appeal, Ali initiated this lawsuit in February 2005. At
this time, Ali was incarcerated at the Sussex Correctional Institute (“SCI”), but he was
subsequently transferred to Delaware Correctional Center (“DCC”). The District Court
permitted him to file two amended complaints to clarify the claims raised in his civil
rights action filed pursuant to 42 U.S.C. § 1983 for alleged violations of the First, Eighth,
and Fourteenth Amendments, as well as the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12132, and the Rehabilitation Act. His complaint alleges that these violations1
occurred during his incarceration at both prisons.

-- 3 of 11 --

Ali also alleges that prison officials violated his rights by ignoring his medical2
condition when he was re-classified and transferred to DCC. The District Court correctly
dismissed this claim at an earlier point in the litigation. See e.g., Moody v. Daggett, 429
U.S. 78, 88 n.9 (1976) (Due Process Clause not implicated by prison officials’ decisions
concerning inmate classifications); Meachum v. Fano, 427 U.S. 215, 224 (1976). Ali also
admitted at his deposition that this new housing assignment made one of his requested
accommodations unnecessary, and therefore, his claim is moot.
4
Ali divided his Amended Complaint into four counts. In Counts I and III, he
alleges that he was subjected to “illegal censoring of legal and personal mail” while
incarcerated at SCI. According to Ali, as part of “a campaign of infringement [of his]
First Amendment rights,” various named defendants have opened, read, and re-taped all
of his outgoing and incoming mail outside of his presence. Ali also surmises that he was
subjected to retaliatory actions after filing complaints regarding prison conditions at SCI,
including racial disparities in inmate treatment, religious issues, and medical care.2
In Count II, Ali alleges that he is a “qualified individual with disabilities” under
the ADA, 42 U.S.C. § 12132, and the Rehabilitation Act; yet, prison officials refused to
provide him with reasonable accommodations. For example, Ali cites that he has been
deprived of a cane for walking, served cold food three times a day, was forced to walk
distances equivalent to a city block, and shackled for visits and interviews. Ali also
alleges that his sick call requests and emergency grievances regarding his medical
conditions were ignored. In addition to violations of the ADA, he alleges that prison
officials’ conduct rises to an Eighth Amendment violation.
Finally, in Count IV, Ali alleges that defendants failed to address his medical

-- 4 of 11 --

Ali improperly identified CMS as Correctional Medical Systems in his Amended3
Complaint.
Ali named defendant Segars who was never properly served with the complaint, and4
therefore, the District Court did not include him as a party or as part of the “State
Defendants.” In addition, although Ali originally sought damages from “Department of
Corrections,” he voluntarily filed a motion to dismiss DOC as a defendant, which the
court granted. Ali also attempted to add claims against two new defendants, Ihuema
Chuks and Crystal Austin, but the District Court did not grant leave to add these new
parties.
5
needs, also amounting to Eighth Amendment violations. Specifically, Ali alleges that
defendants ignored his medical appointments, failed to address cold diets, and failed to
consider his housing assignment in light of his physical disabilities. Additionally, he
alleged that Correctional Medical Services, Inc. (“CMS” ) failed to address his sick-call3
requests and mistreated a condition which he believed was the initial stages of
Methicillin-Resistant Staphylococcus Auerus (“MRSA”) infection. Ali notes that he
received medical treatment, was seen by various physicians, and received medication.
Defendant CMS moved for summary judgment, arguing, inter alia, that Ali failed
to demonstrate deliberate indifference under the Eighth Amendment and that a § 1983
claim cannot be maintained under a theory of respondeat superior. The remaining
defendants, collectively identified as “State Defendants,” also moved for summary
judgment based on a number of arguments, including qualified immunity and that Ali
fails to demonstrate that any of his allegations amount to violations of federal or
constitutional law.4
The Magistrate Judge recommended granting summary judgment in favor of all

-- 5 of 11 --

6
defendants. The District Court agreed, adopted the report as the opinion of the court, and
denied Ali relief, as well as all other pending motions. Ali timely appealed.
We have jurisdiction under 28 U.S.C. § 1291. Because Ali is proceeding in forma
pauperis, we must dismiss the appeal under 28 U.S.C. § 1915 (e)(2)(B) if it is lacking in
arguable merit. See Neitzke v. Williams, 490 U.S. 319, 325 (1989). Our review is
plenary. See Kaucher v. County of Bucks, 455 F.3d 418, 422 (3d Cir. 2006). Summary
judgment is proper if the record demonstrates that there is no genuine issue as to any
material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c).
III.
The Supreme Court has recognized that prisoners have protected First Amendment
interests in both sending and receiving mail. See Thornburgh v. Abbott, 490 U.S. 401
(1989); Turner v. Safley, 482 U.S. 78 (1987). However, the rights of prisoners “must be
exercised with due regard for the ‘inordinately difficult undertaking’ that is modern
prison administration.” Thornburgh, 490 U.S. at 407 (quoting Turner, 482 U.S. at 85).
As the District Court found, Ali explained that his dissatisfaction with the prison
mailroom stemmed from “about five or six” letters that were opened outside of his
presence. At his deposition, Ali stated that the letters were from two senators and a U.S.
Representative, which do not constitute legal mail and are not otherwise deserving of
greater constitutional protection. See Fontroy v. Beard, 559 F.3d 173, 174 (3d Cir. 2009).

-- 6 of 11 --

At his deposition, Ali stated that one letter he had written to a lawyer was opened but5
that the prison stated that it was opened by mistake.
7
Furthermore, defendants set forth a reasonable justification for tracking Ali’s mail: Ali
violated the mail policy by sending correspondence to another inmate. Defendants note
that the prison advised him that his mail would be searched, as long as it was not clearly
marked “Legal Mail.” Ali provides no evidence to support that the allegedly “five or six”
opened letters were marked as legal mail, and therefore, he cannot establish a First5
Amendment violation. Summary judgment was proper.
Ali’s claims involving retaliation are also without merit. To show retaliation, a
prisoner must demonstrate that he was engaged in constitutionally protected conduct, that
the prison officials caused him to suffer “adverse action,” and that his constitutionally
protected conduct was a motivating factor in the officials’ decision to discipline him.
Carter v. McGrady, 292 F.3d 152, 157-58 (3d Cir. 2002) (citing Rauser v. Horn, 241 F.3d
330, 333 (3d Cir. 2001)). However, prison officials may still prevail by proving that they
would have made the same decision even if the prisoner were not engaging in
constitutionally protected conduct. Rauser, 241 F.3d at 334.
Here, Ali cannot show that prison officials would not have opened his mail if he
had not filed grievances or complaints regarding prison conditions. As defendants show,
Ali’s mail was opened based on his violation of the prison mail policy. To the extent that
he argues that his transfer from SCI to DCC constituted retaliation, defendants note that

-- 7 of 11 --

8
he requested this transfer, and thus, cannot be considered an “adverse action.” Carter,
292 F.3d at 157-58. In addition, at DCC he continues to exercise his First Amendment
rights in substantially the same way as he did at SCI.
In addition, the District Court broadly construed Ali’s allegation that prison
officials were engaged in a “campaign of infringement” to find that Ali pled a conspiracy
claim. These bare conclusory allegations are insufficient to sustain a conspiracy claim.
See D.R. by L.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1377
(3d Cir. 1992) (“[m]ere conclusory allegations of deprivations of constitutional rights” are
insufficient to state a conspiracy claim (citation omitted) ); Rose v. Bartle, 871 F.2d 331,
366 (3d Cir. 1989) (allegations supporting a conspiracy claim under civil RICO must be
sufficiently specific). Moreover, defendants had legitimate reasons for opening Ali’s
personal mail.
IV.
Although Ali asserts that he is a “qualified individual” under the ADA and the
Rehabilitation Act, he has provided no evidence to support the claim that he has a
“disability” as defined by either statute. See 42 U.S.C. § 12102; 29 U.S.C. § 705(20).
During his deposition, Ali testified that he is able to walk without the assistance of a cane.
Additionally, cold food or the occasional deprivation of coffee does not constitute
discrimination based on disability, as dissatisfaction with prison conditions does not state
a violation under either the ADA or Rehabilitation Act. Ali also failed to point to any

-- 8 of 11 --

9
specific jobs or programs that he had applied for and was excluded from or discriminated
against on the basis of his disability. Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306
(3d Cir. 1999). His expectation of being free from waist chains and shackles during
movement about the facility does not state a claim under the ADA or the Rehabilitation
Act.
V.
Finally, to show a violation under the Eighth Amendment, Ali must show “(1) that
the defendants were deliberately indifferent to their medical needs and (2) that those
needs were serious.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (citing Estelle
v. Gamble, 429 U.S. 97, 106 (1976)). This requires Ali to demonstrate that prison
officials had a “sufficiently culpable state of mind.” Farmer v. Brennan, 511 U.S. 825,
834 (1994). Specifically, deliberate indifference requires Ali to show that prison officials
knew of an excessive risk to his health or safety and affirmatively disregarded that risk.
Id. at 837-38.
As the District Court properly found, the record demonstrates that Ali received
ongoing treatment for his medical conditions. Ali even admitted in his Amended
Complaint and at deposition that he received medical attention, including treatment by a
dermatologist and medications to treat his skin condition. Rather, the dispute between Ali
and defendants involves the extent and course of his treatment, which does not state a
constitutional violation under the Eighth Amendment. Spruill v. Gillis, 372 F.3d 218, 235

-- 9 of 11 --

10
(3d Cir. 2004) (“mere disagreement as to the proper medical treatment” is insufficient to
state a constitutional violation). Notably, defendants provide evidence that Ali admitted
at his deposition that no doctor has ever diagnosed him with MRSA. Moreover, the
record shows that Ali received treatment by employees of CMS between 2005 and 2007,
which included dermatological diagnosis and treatment. To the extent that Ali alleges
that defendants were negligent in not responding sooner to his medical needs, he does not
state a claim for relief. See Monmouth County Corr. Institutional Inmates v. Lanzaro,
834 F.2d 326, 346 (3d Cir. 1987) (citing Estelle, 429 U.S. at 106 & n.14). Ali also fails to
provide evidence showing that defendants acted with “sufficiently culpable state of
mind.” Farmer, 511 U.S. at 834. Finally, to the extent that Ali raises additional medical
conditions involving his high blood pressure, he cannot establish an Eighth Amendment
claim against defendants, as the record confirms that he received treatment and
medications. Summary judgment was proper.
VI.
Finally, the Magistrate Judge determined that Ali intended to sue State Defendants
in both their individual and official capacities based on how he listed most of the
individual defendants by name and job title, and sought punitive damages from these
defendants in the Amended Complaint. Qualified immunity shields these defendants in
their individual capacities from damages suits so long as their conduct does “not violate
clearly established statutory or constitutional rights of which a reasonable person would

-- 10 of 11 --

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Ridgewood Bd.
of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 254 (3d Cir. 1999). We agree, based on the
discussion above, that the state defendants are entitled to qualified immunity because their
conduct did not rise to constitutional violations. See Pearson v. Callahan, 129 S. Ct. 808
(2009).
Furthermore, as the Magistrate Judge found, the state defendants are entitled to
summary judgment from liability in their official capacities based on Eleventh
Amendment immunity. As the State of Delaware did not waive its Eleventh Amendment
immunity, we agree that Ali’s § 1983 claims against defendants for monetary damages are
barred. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).
VII.
Ali’s appeal is lacking in arguable legal merit, and we will dismiss it under 28
U.S.C. § 1915(e)(2)(B). Ali’s motion for appointment of counsel is denied as moot, and
his motion demonstrating imminent danger is denied as unnecessary. Appellees’ motion
to revoke Ali’s in forma pauperis status is denied.
11

-- 11 of 11 --