Allen Kelly v. York County Prison

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DLD-252
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1439
___________
ALLEN KELLY,
Appellant
v.
YORK COUNTY PRISON; WARDEN MARY SABOL; DEPUTY
WARDEN CLAIRE DOLL; DEPUTY MICHAEL BUONO;
DEPUTY JOHN STEINER; BEATA ERNI; JEN ROGERS; PRIME CARE;
JENNIFER MIOSI; DARYL MALPASS; ERIN BOYD
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civ. No. 08-cv-02027)
District Judge: Honorable James F. McClure, Jr.
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
July 23, 2009
Before: BARRY, AMBRO and SMITH, Circuit Judges
(Opinion filed: August 7, 2009)
OPINION
PER CURIAM

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Allen Kelly appeals pro se from the District Court’s order dismissing his
complaint. For the following reasons, we will vacate and remand for further proceedings.
See 3d Cir. LAR 27.4 (2008); 3d Cir. I.O.P. 10.6.
I.
Kelly is a state prisoner incarcerated in York County, Pennsylvania. In 2008, he
filed suit pro se under 42 U.S.C. § 1983, alleging that prison personnel had refused to
provide him with free photocopies for use in filing a disciplinary complaint with the
Pennsylvania Supreme Court and in his on-going criminal proceeding. The District Court
granted him leave to file the complaint in forma pauperis, then dismissed it as frivolous
under 28 U.S.C. § 1915(e)(2)(B). We dismissed his resultant appeal on the same basis.
See Kelly v. York Cty. Prison, No. 08-4512, 2009 WL 1111535 (3d Cir. Apr. 27, 2009).
While that appeal was pending, Kelly submitted pro se the complaint at issue here,
which he again sought leave to file in forma pauperis. Kelly again sought relief under §
1983, and repeated his claim that prison personnel had denied him free copies. He also
named nine additional defendants and asserted numerous other claims unrelated to his
previous allegations. By order entered January 14, 2009, the District Court granted Kelly
leave to proceed in forma pauperis and dismissed his complaint under § 1915(e)(2)(B) for
failure to state a claim. The District Court also denied leave to amend on the grounds that
any amendment would be futile. Kelly appeals.

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Kelly alleged that prison personnel wrongfully opened mail addressed to him from the1
Department of Veteran Affairs regarding his veteran’s health benefits, claiming that such
mail has protected status and should have been opened only in his presence. The District
Court did not address these allegations, but they fail to state a claim. Only inmates’ legal
mail generally must be opened in their presence. See Fontroy v. Beard, 559 F.3d 173,
174 (3d Cir. 2009). This requirement does not apply to the correspondence at issue here.
Kelly also claims that the correspondence “could have easily been misinterpreted if
censored,” but he does not claim that prison personnel actually censored it.
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II.
We have jurisdiction under 28 U.S.C. § 1291, and our review of the District
Court’s dismissal under § 1915(e)(2)(B) is plenary. See Allah v. Seiverling, 229 F.3d
220, 223 (3d Cir. 2000). The District Court construed Kelly’s complaint to assert two
claims alleging denial of access to the courts, two claims that defendants had been
deliberately indifferent to his medical needs, one claim based on defendants’ refusal to
provide free photocopies, one claim each based on Kelly’s inability to obtain prison
employment and work release, and one claim based on his confinement in the Behavioral
Adjustment Unit and excessive force allegedly used in connection therewith. The District
Court properly construed the majority of Kelly’s allegations and thoroughly and
accurately explained why most of them fail to state a claim. We agree with the District
Court’s reasoning in dismissing the majority of Kelly’s claims and need not reiterate it
here. There are, however, two exceptions. One is harmless, but the other requires1
remand.
Kelly alleges that he has been denied prison employment because, although

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“plaintiff’s name appeared at the top of the work list to be called for work on two
occasions,” he “was ignored deliberately and retaliatory [sic] for utilizing the 801 [prison
grievance] system.” (Compl. ¶ 50.) The District Court dismissed this claim on the sole
basis that “[p]risoners have no Fourteenth Amendment liberty or property interest in
prison employment[.]” That much is true. See James v. Quinlan, 866 F.2d 627, 629 (3d
Cir. 1989). Here, however, “the District Court failed to recognize that ‘government
actions, which standing alone do not violate the Constitution, may nonetheless be
constitutional torts if motivated in substantial part by a desire to punish an individual for
exercise of a constitutional right.’” Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003).
“A prisoner alleging retaliation must show (1) constitutionally protected conduct, (2) an
adverse action by prison officials ‘sufficient to deter a person of ordinary firmness from
exercising his constitutional rights,’ and (3) ‘a causal link between the exercise of his
constitutional rights and the adverse action taken against him.’” Id. (citations omitted).
Kelly has alleged each of these elements here. First, he alleged that he was denied
employment for filing grievances. He claims to have done so “in all matters complained,”
and mentions one grievance in particular based on the cancellation of doctor’s
appointments. (Compl. ¶¶ 17, 19.) The filing of grievances is protected under the First
Amendment. See id. Second, Kelly alleges that he was denied prison employment and
the opportunity to earn wages. That allegation at the very least raises a question of fact
about whether such denial would deter a person of ordinary firmness from filing

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Kelly made no such allegations regarding his inability to obtain work release.2
Instead, he alleges only that he was unable to find outside employment that would have
qualified him for the program and that the director of the program refused to assist him.
He does not allege that the director did so in retaliation for any protected conduct or acted
in violation of any policy or rule.
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grievances in the future. See Allah, 229 F.3d at 225. Finally, “the word ‘retaliation’ in
his complaint sufficiently implies a causal link between his complaints” and denial of
employment. Mitchell, 318 F.3d at 530.2
Though Kelly’s complaint alleges these elements, it does not comply with Rule 8
as presently constituted. Kelly’s pro se complaint must be liberally construed, but he has
not alleged who denied him employment, or whom he otherwise holds responsible for the
alleged retaliation and why. That deficiency, however, could be cured by amendment.
The District Court properly recognized that “[d]ismissal without leave to amend is
justified only on the grounds of bad faith, undue delay, prejudice, or futility.” Alston v.
Parker, 363 F.3d 229, 236 (3d Cir. 2004). The District Court concluded that amendment
would be futile. For the reasons explained above, we disagree.
Accordingly, we will vacate the District Court’s order and remand. On remand,
the District Court is directed to allow Kelly to file an amended complaint, limited to his
claim of retaliatory denial of employment, and thereafter to conduct such further
proceedings as may be necessary. Kelly’s motion for the appointment of counsel in this
Court is denied.

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