Hillard M. Winn v. Department of Corrections

CLD-232 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1653
___________
HILLARD M. WINN,
Appellant
v.
DEPARTMENT OF CORRECTIONS; CARROLL DANBERG, Commissioner of
Prisons; WARDEN PERRY PHELPS; TED MACCREANOR
____________________________________
On Appeal from the United States District Court
for the District of Delaware
(D.C. Civil No. 08-cv-00896)
District Judge: Honorable Gregory M. Sleet
____________________________________
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
Before: RENDELL, HARDIMAN and NYGAARD, Circuit Judges
(Opinion filed: July 28, 2009)
_________
OPINION
_________
PER CURIAM
Hillard M. Winn, an inmate at the James T. Vaughn Correctional Center in
Smyrna, Delaware, appeals from a District Court order dismissing his pro se civil rights
action as frivolous. For the reasons that follow, we will summarily affirm.

-- 1 of 5 --

2
In September 2006, Winn was convicted in a Delaware state court and sentenced
to a 30-year prison term. Since he has been in prison, Winn has filed a number of pro se
actions, including appeals of his conviction in state court and a habeas corpus petition in
federal court. He was successful in withdrawing a portion of his guilty plea, and his
habeas petition is currently pending in the District Court.
Winn is indigent. The prison in which he is serving his sentence has a policy for
the legal mailings of indigent prisoners like Winn. The prison advances the money for
postage, keeps track of how much postage it has advanced, and deducts that amount from
any funds that the prisoner obtains in the future. It does not provide free postage. Some
of the legal mail that Winn sent in connection with his direct appeal and his habeas
petition was returned because it did not contain a stamp or a “pay-to” slip.
On December 1, 2008, Winn filed a pro se civil rights action pursuant to 42 U.S.C.
§ 1983, alleging that the prison’s mail policy denied him access to the courts. He also
alleged that he had filed a grievance challenging this policy, but that the warden denied
the grievance and did not give him the opportunity for an appeal. Winn claims that this
was a violation of his equal protection and due process rights.
Before the defendants were served with the complaint, by order entered February
18, 2009, the District Court dismissed Winn’s complaint as frivolous pursuant to 28

-- 2 of 5 --

A complaint is subject to dismissal under § 1915(e)(2)(B) “where it lacks an arguable1
basis in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989); see also Roman
v. Jeffes, 904 F.2d 192, 194 (3d Cir. 1990). This standard covers both “inarguable legal
conclusion[s]” and “fanciful factual allegation[s].” Neitzke, 490 U.S. at 325.
We have jurisdiction to hear this appeal. 28 U.S.C. § 1291. We review the District2
Court’s § 1915(e) dismissal without leave to amend for abuse of discretion. Denton v.
Hernandez, 504 U.S. 25, 33 (1992). To the extent that the District Court engaged in the
choice, application, and interpretation of the law, our review is plenary. Deutsch v.
United States, 67 F.3d 1080, 1083 (3d Cir. 1995).
3
U.S.C. § 1915(e)(2)(B). The District Court also concluded that amending the complaint1
would be futile. Winn filed a timely notice of appeal.2
I.
Prisoners have a fundamental right to access the courts. Lewis v. Casey, 518 U.S.
343, 346 (1996). However, a prisoner making an access-to-the-courts claim is required to
show that the denial of access caused actual injury. Id. at 352-53. Actual injury occurs
when a prisoner demonstrates that a “nonfrivolous” and “arguable” claim was lost
because of the denial of access to the courts. Christopher v. Harbury, 536 U.S. 403, 415
(2002).
Here, Winn alleged that his legal mail was returned to him because it did not have
postage or a “pay-to” stamp. Even construing this claim with the liberality with which we
read pro se complaints, see Haines v. Kerner, 404 U.S. 519, 520 (1972), Winn has not
made out an access-to-the-courts claim. In his argument in support of appeal, Winn
claimed that the returned mail caused his legal communications to be delayed, and that
this delay affected his cases. We note, however, that Winn prevailed in his attempt to

-- 3 of 5 --

4
withdraw a portion of his guilty plea. In addition, the docket sheet for his habeas corpus
petition does not suggest that any of his filings were rejected as untimely; indeed, Winn
has filed five letters and three motions in that case. Thus, Winn has not satisfied the
actual injury requirement.
II.
We next consider the argument that the warden violated Winn’s equal protection
and due process rights by refusing to allow an appeal to the grievance. “[T]he filing of
prison grievances is a constitutionally protected activity.” Davis v. Goord, 320 F.3d 346,
352-53 (2d Cir. 2003). However, “[w]hen the claim underlying the administrative
grievance process involves a constitutional right, the prisoner’s right to petition the
government for redress is the right to access the courts, which is not compromised by the
prison’s refusal to entertain his grievance.” Flick v. Alba, 932 F.2d 728, 729 (11th Cir.
1991). Here, the warden’s refusal to allow the appeal would allow Winn to overcome an
affirmative defense of exhaustion. See 42 U.S.C. § 1997e(a); Camp v. Brennan, 219 F.3d
279, 281 (3d Cir. 2000) (noting that a prison need only exhaust the administrative
remedies “as are available”). However, the denial of an appeal does not in itself give rise
to a constitutional claim, as Winn is still free to bring a civil rights claim in District Court,
as he did here. See Flick, 932 F.2d at 729. The District Court properly dismissed these

-- 4 of 5 --

We agree with the District Court that any attempt by Winn to amend his claims3
would have been futile. See Oliver v. Fauver, 118 F.3d 175, 178 (3d Cir. 1997).
5
claims.3
III.
For the foregoing reasons, we conclude that this appeal presents no substantial
question. Accordingly, we will summarily affirm the judgment of the District Court.

-- 5 of 5 --