Atwell v. Lavan (557 F. Supp. 2d 532, 2008)

United States District Court for the Middle District of Pennsylvania 2008-03-26

Citations

Full opinion text

MEMORANDUM AND ORDER

SYLVIA H. RAMBO, District Judge.

Before the court is a December 21, 2007 report and recommendation of the magistrate judge addressing the cross-motions for summary judgment filed by the Commonwealth Defendants and by Plaintiff. The procedural history of this case will not be set forth herein as it is adequately set forth in the December 21, 2007 report and recommendation and is not in dispute.

The claims before this court come by way of a complaint filed pursuant to 42 U.S.C. § 1983 alleging numerous defendants violated three of Plaintiffs constitutional rights, i.e. an Eighth Amendment excessive confinement claim; an Eighth Amendment denial of proper medical care claim; and a First Amendment claim of denial of access to court.

Plaintiffs complaint alleges that he was being held in custody beyond the expiration of his sentence and that he was denied access to the courts and necessary medical care. The magistrate judge, after a thorough examination of the facts and the law applicable thereto, recommended that the Commonwealth Defendants’ motion for summary judgment be granted as to all of Plaintiffs claims against them and that judgment be entered in favor of all of the Commonwealth Defendants and against Plaintiff. He further recommended that Plaintiffs cross motion for summary judgment against the Commonwealth Defendants be denied.

Plaintiff has filed objections encompassing 36 pages. In summary, he alleges that the magistrate judge only considered Defendants’ motion and brief and did not address Plaintiffs motion and brief. He further alleges that had the magistrate judge considered Plaintiffs submission, he would have found material facts in dispute so that the magistrate judge could not have recommended granting the Commonwealth Defendants’ motion for summary judgment.

The standards governing the court’s consideration of Federal Rule of Civil Procedure 56(c) cross-motions are the same as those governing motions for summary judgment, although the court must construe the motions independently, viewing the evidence presented by each moving party in the light most favorable to the non-movant. Raymond Proffitt Foundation v. U.S. Environmental Protection Agency, 930 F.Supp. 1088, 1096 (E.D.Pa.1996).

The allegation that the magistrate judge failed to give consideration to Plaintiffs submissions is without foundation. The magistrate judge makes references to document 189 (Plaintiffs brief in support of his motion for summary judgment), and document 191 (Plaintiffs appendix to his brief). The copies of those file documents received from the magistrate judge contain highlighting and have numerous pages tabbed.

Significantly, Plaintiffs motion for summary judgment only addressed the issue of Plaintiffs alleged illegal incarceration. The exhibits in Plaintiffs appendix (doc. 191) were used by the magistrate judge in addressing this issue. The arguments in support of Plaintiffs motion for summary judgment on the illegal incarceration issue are the same arguments set forth in Plaintiffs opposition brief to the Commonwealth Defendants’ motion for summary judgment. It would have been a waste of judicial resources for the magistrate judge to write two separate reports and recommendations on cross-motions for summary judgment. No other arguments are set forth in the objections other than a reiteration of Plaintiffs factual disputes that have been addressed by the magistrate judge.

IT IS THEREFORE ORDERED THAT:

1) The court adopts the December 21, 2007 report and recommendation of Magistrate Judge Blewitt.

2) The Commonwealth Defendant’s motion for summary judgment is granted.

3) Plaintiffs cross-motion for summary judgment is denied.

4) The clerk of court shall defer the entry of judgment in favor of the Commonwealth Defendants and against Plaintiff until the conclusion of this case.

5) Any appeal from this order will be deemed frivolous and not taken in good faith.

REPORT AND RECOMMENDATION

THOMAS M. BLEWITT, United States Magistrate Judge.

I. Background.

On September 30, 2003, Plaintiff, Geoffrey W. Atwell, filed, pro se, this civil rights action pursuant to 42 U.S.C. § 1983. On January 20, 2004, he filed an Amended Complaint. (Doc. 18). The District Court dismissed Plaintiffs Amended Complaint on May 3, 2004, essentially because Plaintiff continued to misjoin Defendants in his pleadings. (Doc. 22). Plaintiff appealed the District Court’s May 3, 2004 Order. On June 23, 2005, the Third Circuit vacated the District Court’s Order holding that misjoinder of parties was not grounds for dismissal of an action, and remanded Plaintiffs case. (Doc. 40). As the Third Circuit Court stated in its June 23, 2005 Opinion issued in Plaintiffs Appeal of the District Court’s Order dismissing his action (Doc. 22), “While in prison, Atwell filed a complaint under 42 U.S.C. § 1983 against 86 Defendants alleging that he was being held in custody beyond the expiration of his sentence, and that he was denied access to the courts and necessary medical care.” (Doc. 40-2, p. 2).

Subsequently, Plaintiffs Amended Complaint was screened, and fourteen (14) Defendants were dismissed. (Docs. 49 and 55). The remaining forty (40) Defendants were then served.

The District Court has stated that Plaintiff is proceeding on his Amended Complaint in this case. (Doc. 55). Plaintiff was granted leave to proceed in forma pauperis. (Doc. 48).

Plaintiff basically claims that Defendants made him serve, as an inmate at the State Correctional Institution at Dallas, Pennsylvania (“SCI-Dallas”), illegal additional time beyond the maximum sentences imposed by the Adams County Court, which should have expired October 19, 2002, and not May 22, 2004. Plaintiff states that, by requiring him to serve more time than mandated by his sentences, Defendants violated his Constitutional rights. (Doc. 189, pp. 1-3). Plaintiff states that his alleged illegal incarceration from October 19, 2002 through May 22, 2004 “is cruel and unusual punishment in violation of the 8th Amendment” and that it violated his “5th and 14th Amendment Rights.” (Id., p. 4). Plaintiff does not indicate if he filed a Petition for Writ of Habeas Corpus, while he still was in custody, with respect to his claim the he was made to serve prison sentences in excess of the sentences imposed by the state court. Plaintiff further claims that his First Amendment right to access to the courts was denied by Defendants. (Id., pp. 4-5). Plaintiff states that Defendants improperly calculated his sentences and as a result required him to serve almost two more years than ordered by his sentences. Plaintiff contends that his maximum incarceration date was October 19, 2002, and not May 22, 2004, which was the date Defendants released him. Plaintiff also alleges that some Defendants violated his Eighth Amendment right to proper medical care. Plaintiff is no longer incarcerated at SCI-Dallas.

In his amended pleading, Plaintiff named fifty-four (54) Defendants. However, the District Court has dismissed fourteen (14) of those Defendants. Defendant Kelly Gallagher was subsequently dismissed. (Doc. 108). Thirty-nine (39) Defendants remain in this case. (Docs. 55 and 108). Service has been completed on all remaining Defendants. All of the remaining Defendants have filed Answers to the Amended Complaint, or they have filed Motions to Dismiss or for Summary Judgment.

On January 23, 2006, Defendant Kelly Gallagher, P.A., a Physician Assistant at SCI-Dallas, filed a Motion to Dismiss the Plaintiffs Amended Complaint as against her. (Doc. 71). On March 13, 2006, as stated, the District Court granted Defendant Gallagher’s Motion. (Doc. 108).

On March 27, 2007, Commonwealth Defendants filed a Motion for Summary Judgment. (Doc. 183). The thirty-six (36) named Commonwealth Defendants are the following: Lavan, Beard, James, Burks, Kelchner, Kazor, Marsella, Griffith, Hildebrand, Bernard, Shaffer, McGrady, Faneck, Leachey, Zaledonis, Burnett, Putnam, Keller, West, Tucker, Smith, Morris, Higgins, Thomas, Harrison, Ginochetti, Doknovitch, Blizzard, Meyers, Gaughan, Martinez, Ryan, McCrone, Szierzyna, Sel-vey and Dietrich. (Id.). As noted, we find Defendant Dougherty is also a Commonwealth Defendant with respect to Doc. 183. Since Plaintiff has stated the positions of the Commonwealth Defendants in his Amended Complaint (Doc. 18, pp. 3-12), we shall not repeat them. Commonwealth Defendants filed their Statement of Material Facts (“SMF”) with Exhibits and their support Brief on March 28, 2007. (Docs. 184 and 185, respectively). (Commonwealth Defendants’ Exhibits are attached to Doc. 184). On April 10, 2007, Plaintiff filed his Brief in opposition to the Commonwealth Defendants’ Summary Judgment Motion, with an attached Appendix. (Docs. 194 and 194-2). After being granted an extension of time, Commonwealth Defendants filed their Reply Brief in support of their Summary Judgment Motion on April 23, 2007. (Doc. 200).

On May 11, 2007, Plaintiff, without leave of Court (See Local Rule 7.7, M.D. Pa.), filed a Sur-reply Brief with an Exhibit in response to the Commonwealth Defendants’ Reply Brief. (Doc. 209). On May 4, 2007, Commonwealth Defendants filed a letter to the Court with a new Third Circuit case as additional authority in support of their Summary Judgment Motion, namely James v. PA. DOC, 230 Fed.Appx. 195 (3d Cir.2007) (Non-Precedential). (Doc. 204). We will consider this new case relied upon by Commonwealth Defendants since it was decided April 27, 2007, after Commonwealth Defendants filed their Reply Brief.

On April 2, 2007, Plaintiff filed a eross-Summary Judgment Motion, a support Brief, as well as a support Memorandum and an Appendix. (Docs. 188,189,190 and 191).

We first consider the Summary Judgment Motion of Commonwealth Defendants since their Motion was filed prior to Plaintiffs dispositive motion.

Commonwealth Defendants argue that the record demonstrates that they did not violate Plaintiffs right to proper medical care while he was a inmate, as he alleges in his Amended Complaint, i.e. Plaintiffs Eighth Amendment denial of proper medical care claim. (Doc. 185, p. 2). Commonwealth Defendants also argue that they are entitled to summary judgment with respect to Plaintiffs First Amendment access to courts claim since the policies which Plaintiff challenges did not violate his First Amendment right. (Id.). Further, Commonwealth Defendants argue that they should be granted summary judgment with respect to Plaintiffs Eighth Amendment excessive confinement claim and claim that they improperly computed his sentences since he was not confined beyond the maximum date of his sentences. (Id., p. 3).

We shall first discuss Plaintiffs Eighth Amendment denial of proper medical care claim as against the Commonwealth Defendants. We find that the evidence does not show that these Defendants violated Plaintiffs Constitutional right to adequate medical care. We also find that, since Plaintiff was being treated by the prison medical staff and doctors, in particular, Defendants Dr. Bohinski and Dr. Stanish (Medical Defendants), he fails to show the required personal involvement of the Commonwealth Defendants regarding his medical care.

We have reviewed Plaintiffs amended pleading and the evidence, and find that there is no showing that Commonwealth Defendants were deliberately indifferent to any of Plaintiffs serious medical conditions in violation of the Eighth Amendment.

II. Section 1983 Standard.

In a § 1983 civil rights action the Plaintiff must prove the following two essential elements: (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct complained of deprived the Plaintiff of rights, privileges or immunities secured by the law or the Constitution of the United States. Parrott v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d Cir.1993). Further, Section 1983 is not a source of substantive rights. Rather, it is a means to redress violations of federal law by state actors. Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002). See also Holocheck v. Luzerne County Head Start, Inc., 385 F.Supp.2d 491, 498-499 (M.D.Pa.).

It is well established that personal liability under section 1983 cannot be imposed upon a state official based on a theory of respondeat superior. See, e.g., Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1082 (3d Cir.1976); Parrott, supra. It is also well settled in the Third Circuit that personal involvement of defendants in alleged constitutional deprivations is a requirement in a § 1983 case and that a complaint must allege such personal involvement. Id. Each named defendant must be shown, through the complaint’s allegations, to have been personally involved in the events or occurrences upon which Plaintiffs claims are based. Id. As the Court stated in Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988):

A defendant in a civil rights action must have personal involvement in the alleged wrongs .... [Pjersonal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity. (Citations omitted).

A civil rights complaint must state time, place, and responsible persons. Id. With these principles in mind, Plaintiffs allegations with respect to the Defendants will be discussed.

III. Summary Judgment Standard.

A motion for summary judgment may not be granted unless the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. The court may grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c). An issue of fact is “‘genuine’ only if a reasonable jury, considering the evidence presented, could find for the nonmoving party.” Childers v. Joseph, 842 F.2d 689, 693-694 (3d Cir.1988) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

The burden of proving that there is no genuine issue of material fact is initially upon the movant. Forms, Inc. v. American Standard, Inc., 546 F.Supp. 314, 320 (E.D.Pa.1982), aff'd mem. 725 F.2d 667 (3d Cir.1983). Upon such a showing, the burden shifts to the nonmoving party. Id. The nonmoving party is required to go beyond the pleadings and by affidavits or by “depositions, answers to interrogatories and admissions on file” designate “specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e).

In determining whether an issue of material fact exists, the court must consider the evidence in the light most favorable to the nonmoving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir.1988). In doing so, the court must accept the nonmovant’s allegations as true and resolve any conflicts in his favor. Id., quoting Gans v. Mundy, 762 F.2d 338, 340 (3d Cir.1985), cert. denied, 474 U.S. 1010, 106 S.Ct. 537, 88 L.Ed.2d 467 (1985); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976).

Moreover, the Third Circuit has recently indicated that “although the party opposing summary judgment is entitled to ‘the benefit of all factual inferences in the court’s consideration of a motion for summary judgment, the nonmoving party must point to some evidence in the record that creates a genuine issue of material fact,’ and ‘cannot rest solely on assertions made in the pleadings, legal memorandum or oral argument.’ ” Goode v. Nash, 2007 WL 2068365 (3d Cir.2007) (Non-Prece-dential) (citation omitted).

IV. Allegations of the Amended Complaint.

In his Statement of Claim section of his Amended Complaint (Doc. 18, p. 13), Plaintiff asserted his stated three Constitutional claims, i.e. Eighth Amendment excessive confinement claim, Eighth Amendment denial of proper medical care claim, and First Amendment denial of right to access to courts claim, and alleged as follows with respect to his claims:

IV. STATEMENT OF CLAIM

A.Plaintiff, through written and/or personal notification, has been denied a vested absolute liberty interest of freedom by Defendants allowing illegal additional sentence to sentence imposed by Pa. judiciary same offense without penological justification violation of 5th Amendment double jeopardy section, as vested with states in 14th Amend as Defendants, acting under color of law, refused to investigated and acquiesced, inflicting cruel unusual punishment of illegal imprisonment volatile environment as Plaintiffs judicially imposed sentencing was completed on/or about May 22, 2002, also violating the 8th Amendment, all in deliberate indifference with reckless disregard, repugnant to the conscience of mankind.

B. Plaintiff has been denied access to the courts by Defendants such that Plaintiffs legal files have been confiscated, denying pursuance of 3rd Circuit docket 01-1209/2155 reconsideration motion; creating difficulty pursuing docket no. 1:03 CV-01728; pursuance Plaintiffs appeals criminal cases Pa. dockets and, denial after completion Plaintiffs Pa. Judicially imposed sentencing and/or about May 22, 2002.

C. Plaintiff has been subject to cruel and unusual punishment by recklessly disregarding with deliberate indifference Plaintiffs serious medical conditions before and after completion of Plaintiffs judicially imposed sentencing as completed on/or about May 22, 2002.

(Doc. 18, p. 13).

Thus, we agree with Commonwealth Defendants that Plaintiff has asserted three claims in this case. Specifically, as Commonwealth Defendants state in their Brief (Doc. 185, p. 3):

[P]laintiff presents three claims of alleged constitutional violations in this case: 1) that Commonwealth defendants violated a Fourteenth Amendment liberty interest in freedom from incarceration because, plaintiff contends, he should have been released from custody in May 2002 rather than May 2004; 2) that Commonwealth defendants violated plaintiffs First Amendment right of access to the courts because a) he had insufficient funds in his inmate account to meet the expense of mailing certain documents to the court in civil actions he was then pursuing, and b) he was not permitted to retrieve certain “legal” materials stored in the prison’s storage room; and 3) that defendants violated plaintiff’s Eighth Amendment right to freedom from cruel and unusual punishment because they were deliberately indifferent to his serous medical needs.

V. Undisputed Material Facts.

Commonwealth Defendants have filed their lengthy (¶’s 1.-57.) Statement of Material Facts (“SMF”) along with numerous exhibits in support of their Summary Judgment Motion. (Doc. 184). Plaintiff has responded to Defendants’ numerous SMF’s and has submitted exhibits. (Doc. 194, pp. 6-10 and Doc. 191). Both parties have relied upon evidence in the record to support their SMF’s and responses thereto.

Commonwealth Defendants’ SMF (57 paragraphs) filed in support of their Summary Judgment Motion and Plaintiffs Response to Defendants’ Statement of Material Facts (Docs. 184 and 194, respectively), were filed pursuant to Local Rule 56.1, M.D. Pa. Defendants’ SMF and Plaintiffs Responses both include references to the parts of the record that support each of their Statements and Responses thereto. In fact, both documents contain citations to their exhibits with respect to Defendants’ SMF’s. (Id.). Defendants’ Exhibits A-E, and attachments thereto are found at Doc. 184, and Plaintiffs Exhibits are found at Doc. 194-2 and 191. We note also that Plaintiffs responses to Defendants’ SMF (Doc. 194, pp. 6-10) refer to the numbered paragraphs set forth in Defendants’ SMF as required by Local Rule 56.1.

Thus, to the extent that Defendants’ SMF’s are not disputed by Plaintiff in his Memorandum (Doc. 194), we shall consider them as unopposed. Therefore, we accept the stated facts contained in Defendants’ SMF’s that are supported by the evidence and that are not disputed by Plaintiffs responses thereto, and we will adopt them as our own herein. See U.S. ex rel. Para-nich v. Sorgnard, 396 F.3d 326, 330, n. 5 (3d Cir.2005) (Under M.D. Pa. L.R. 56.1, the Third Circuit noted that the District Court adopted all the facts of one party that were not clearly disputed by the other party with sufficient citation to the record).

We shall accept the following SMF’s of Defendants (Doc. 184), in full or to the extent stated, and we shall indicate which SMF’s we find disputed by Plaintiff:

¶ 1., except that Plaintiff is now 65.

¶ 2.

¶ 3.

¶ 4.

i. SMF’s Regarding Plaintiff’s Eighth Amendment Illegal Excessive Confinement Claim

¶ 5.

¶ 6.

¶ 7.

H’s 8.-9. are admitted by Plaintiff, and Plaintiff states that his April 11, 2000 judgment of sentences for four of his Adams County Court of Common Pleas (“CCP”) sentences (Doc. 191, Ex. 17) were modified on May 22, 2000, and Plaintiffs exhibits reveal that the CCP entered the following Orders on May 22, 2000:

The Sentences entered on April 11, 2000 are modified in the following regard: The Sentence of the Court in CC-245-98 is as follows: On Count one, theft by unlawful taking in violation of Section 3921(a) of the Crimes Code as a misdemeanor of the third degree, the Defendant shall be incarcerated for a period of no less than one nor more than twelve months. On Count two, criminal mischief in violation of Section 3304(a)(1) of the Crimes Code as a summary offense, the Defendant shall be incarcerated for a period of 90 days.

The Sentence of the Court on violation of Section 2703.1 of the Crimes Code [Case No. CC-1050-99] as a felony of the third degree is that the Defendant shall be incarcerated in a State Correctional Institution for a period of no less than six nor more than 24 months. He shall pay the costs, a $100 fine and all fees, fines and costs mandated by law, Local Rule of Court or Administrative Order of Court. This sentence shall be served consecutive to the sentence imposed in CC-97-99.

(Doc. 191, Ex. 19 and Ex. 20).

¶ 10., it is undisputed that Plaintiff was paroled on his CCP sentences in cases CC-245-98, CC-458-98 and CC-522-99 on April 19, 2000. (Doc. 194, p. 7, ¶ h.).

With respect to ¶’s 8.-16. of Defendants’ SMF’s and Plaintiffs responses thereto, for present purposes we find that the CCP’s sentencing Orders (Doc. 191, Ex. 17, Ex. 19 and Ex. 20) speak for themselves. The different interpretation by the parties of the CCP’s April 11, 2000 and May 22, 2000 Orders contained in their SMF’s and responses thereto (Doc. 184, ¶’s 8.-16. and Doc. 194, pp. 7-8) regarding their effects on Plaintiffs Eighth Amendment excessive confinement claim will discussed below.

¶ 17.

¶’s 18.-21., with respect to ¶’s 18.-21. of Defendants’ SMF’s and Plaintiffs responses thereto, for present purposes we find that the CCP’s sentencing Orders of May 22, 2000 and March 21, 2001 (Doc. 191, Ex. 17, Ex. 19 and Exs. 20-21) to speak for themselves. The different interpretation of the parties of the CCP’s May 22, 2000 and March 21, 2001 Orders contained in their SMF’s and responses thereto (Doc. 184, H’s 18.-21. and Doc. 194, pp. 8-9) regarding their effects on Plaintiffs Eighth Amendment excessive confinement claim will be discussed below. Further, Plaintiff states that ¶’s 19.-21. of Defendants’ SMF “are false,” and they are disputed by Plaintiff. (Doc. 194, p. 9).

ii. SMF’s Regarding Plaintiffs Eighth Amendment Medical Care Claim

¶’s 22.-46. of Defendants’ SMF’s (Doc. 184, pp. 6-11) pertain to Plaintiffs Eighth Amendment denial of proper medical care claim. Plaintiff generally asserts that Defendants’ “SMF’s Nos. 24-57, from the October 19, 2002 date of illegal incarceration are erroneous as proper medical care and access to the courts for Plaintiff ... were denied ... as drugs given Plaintiff were generic, not brand name, and Plaintiff was refused medical diet .... ” (Doc. 194, pp. 9-10). We do not find that under Local Rule 56.1 M.D. Pa., Plaintiff has properly disputed U’s 22.-46. of Defendants’ SMF’s (Doc. 184) with respect to Plaintiffs Eighth Amendment denial of proper medical care claim. Further, since Defendants have relied upon specific evidence (Doc. 184, ExsA-D) to support each and every one of H’s 22.-46. of their SMF’s (Doc. 184, pp. 6-11) as well as Plaintiffs voluminous prison medical records (Doc. 184, attached to Ex. C, Leskowsk/s Declaration), we shall adopt them in their entirety and incorporate them herein by reference. See U.S. ex rel. Paranich v. Sorgnard, 396 F.3d 326, 330, n. 5 (3d Cir.2005). We also find that Plaintiffs undisputed medical records speak for themselves. (Doc. 184, attached to Ex. C, Leskowsky’s Declaration).

Hi. Defendants’ SMF’s Regarding Plaintiffs First Amendment Denial of Access to Courts Claim

¶’s 47.-57. of Defendants’ SMF’s (Doc. 184, pp. 11-14) pertain to Plaintiffs First Amendment denial of access to courts claim. As stated, Plaintiff generally disputes ¶’s 24.-57. of Defendants’ SMF’s. (Doc. 194, pp. 9-10). We again do not find that, under Local Rule 56.1 M.D. Pa., Plaintiff has properly disputed ¶’s 47.-56. of Defendants’ SMF’s (Doc. 184, pp. 11-14) with respect to Plaintiffs First Amendment denial of access to courts claim. Further, since Defendants have relied upon specific evidence (Doc. 184, Exs.A-D) to support each and every one of ¶’s 47.-57. of their SMF’s (Doc. 184, pp. 11-14), we shall adopt them in their entirety and incorporate them herein by reference. See U.S. ex rel. Paranich v. Sorgnard, 396 F.3d 326, 330, n. 5 (3d Cir.2005).

We now begin our discussion with respect to Plaintiffs Eighth Amendment denial of proper medical care claim.

VI. Discussion.

1. Eighth Amendment Denial of Proper Medical Care Claim

Initially, we find that Plaintiff has not stated the personal involvement of several of the Commonwealth Defendants with respect to his Eighth Amendment denial of medical care claim. As noted, the Amended Complaint only states that eight (8) Commonwealth Defendants were directly involved with Plaintiffs medical care, namely Defendants West, Tucker, Smith, Dietrich, Thomas, Harrison, Ginochetti, and Doknovitch. (Doc. 18, pp. 3-12).

Plaintiff also states that supervisory Defendants Lavan and McGrady denied his grievance appeals regarding his Eighth Amendment denial of medical care claim. Plaintiff states that Defendants Burks and James were involved with his Eighth Amendment medical care claim due to their role regarding his grievance. (Doc. 18, p. 5). Plaintiff does not state that any of the remaining Commonwealth Defendants were personally involved in his Eighth Amendment denial of proper medical care claim. Plaintiff does not mention any specific allegations against these remaining Commonwealth Defendants as to how they denied Plaintiff proper medical care, and how they were deliberately indifferent to Plaintiffs serious conditions.

Moreover, PA Board employee Defendants, namely, Myers, Gaughan, Martinez, Ryan, McCrone, Zwierzyna, Selvey, and Dougherty, are not alleged to have been personally involved in either of Plaintiffs Eighth Amendment denial of proper medical care claim or his First Amendment denial of access to courts claim. (Doc. 18, pp. 7-12). Plaintiff only alleges the personal involvement of the eight (8) Defendant PA Board members with respect to his Eighth Amendment excessive confinement claim. (Id.). Further, Plaintiffs exhibits only show the personal involvement of the eight (8) Defendant PA Board members with respect to his Eighth Amendment excessive confinement claim. (Doc. 191, Exs. 25-A to 25-J). Thus, we will recommend that Commonwealth Defendants’ Summary Judgment Motion be granted with respect to the stated eight (8) PA Board Defendants, ie. Myers, Gau-ghan, Martinez, Ryan, McCrone, Zwierzy-na, Selvey, and Dougherty, as to both Plaintiffs Eighth Amendment denial of proper medical care claim and his First Amendment denial of access to courts claim since they were not alleged to have been personally involved with these claims. See James, supra, 230 Fed.Appx. at 198.

Nor do we find that supervisory Defendants Lavan and McGrady have been properly alleged to have been personally involved with Plaintiffs Eighth Amendment denial of proper medical care claim. As stated, Plaintiff alleges that supervisory Defendants Lavan and McGrady denied his grievance appeals regarding his Eighth Amendment denial of medical care claim. (Doc. 18, pp. 3, 6). Plaintiff states that these two Defendants denied his appeal of his grievance No. 50246 that claimed his serious medical needs were not being treated. (Id.). Plaintiff does not state any other personal involvement of these two supervisory Defendants with respect to his Eighth Amendment medical care claim. (Id.). Plaintiff merely alleges that these two Defendants violated his Eighth Amendment right to proper medical care due to their denial of his appeals of his grievance No. 50246 dated April 27, 2003. (Doc. 18, pp. 3, 6). Further, Plaintiff only alleges that Defendants Burks and James were involved with respect to his medical care claim regarding their role in denying his appeal of grievance No. 50246 (Burks) and in refusing to investigate grievance No. 50246 (James). (Doc. 18, p. 5). Since Plaintiff has no Constitutional right to a grievance procedure, we find that the denial of Plaintiffs grievance appeal by Defendants Lavan and McGrady, as well as by Burks, and the alleged refusal to investigate his grievance by Defendant James, fails to state an Eighth Amendment claim against them.

The law is well-settled that there is no constitutional right to a grievance procedure. See Jones v. North Carolina Prisoners’ Labor Union, Inc. 433 U.S. 119, 137-138, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977). This very Court has also recognized that grievance procedures are not constitutionally mandated. See Chimenti v. Kimber, Civil No. 3:CV-01-0273, slip op. at p. 18 n. 8 (March 15, 2002) (Vanaskie, C.J.), reversed in part, C.A. No. 03-2056 (3d Cir. June 8, 2005) (Non-Precedential). Even if the prison provides for a grievance procedure, as the DOC does, violations of those procedures do not amount to a civil rights cause of action. Mann v. Adams, 855 F.2d 639, 640 (9th Cir.1988), cert denied, 488 U.S. 898, 109 S.Ct. 242, 102 L.Ed.2d 231 (1988); Hoover v. Watson, 886 F.Supp. 410, 418 (D.Del.1995), aff'd. 74 F.3d 1226 (3d Cir.1995). See also Burnside v. Moser, Civil No. 04-2485, 12-16-04 Order, p. 3, J. Muir, M.D. Pa. (Even “[i]f the state elects to provide a grievance mechanism, violations of its procedures do not ... give rise to a [constitutional] claim.”) (citations omitted). Thus, even if the prison official allegedly failed to process the prisoner’s grievances, no constitutional claim is stated. Burnside, supra.

As the Court indicated in James, supra, 230 Fed.Appx. at 198, evidence only showing supervisory Defendants’ involvement in an Eighth Amendment medical care claim was that they responded unfavorably to the inmate’s later-filed grievances, does not establish an Eighth Amendment violation against them.

Plaintiff has not stated an Eighth Amendment medical care claim as a result of the supervisory Defendants’ (Lavan and McGrady) denial of his grievance appeals regarding his complaint about his medical care. As stated, Plaintiff had no Constitutional right to a grievance process. See Weakley v. Fischi, Civil No. 06-1823, M.D. Pa., 4-30-07 Memorandum, pp. 5-6 (“An allegation that an official ignored an inmate’s request or that he did not take action to address a grievance is not sufficient to hold that official liable for the violation.”) (citing Wilson v. Horn, 971 F.Supp. 943, 947 (E.D.Pa.1997)). Thus, we shall recommend that Defendants Lavan and McGrady, as well as Defendants Burks and James, be granted summary judgment with respect to Plaintiffs Eighth Amendment medical care claim. Plaintiff also alleges that Defendant Burnett was involved with his Eighth medical care claim since this Defendant was the initial grievance coordinator who seemingly denied his grievance No. 50286 regarding his complaint about his medical care. (Doc. 18, p. 8, ¶ GG). Based on the above discussion, we will recommend that Defendant Burnett be granted summary judgment with respect to Plaintiffs Eighth Amendment medical care claim.

These stated Defendants are not sufficiently involved with Plaintiffs Eighth Amendment medical care claim and are alleged to only have had involvement with Plaintiffs grievance and the failure to investigate his grievance regarding his complaint about his medical care. Based on Plaintiffs voluminous prison medical records demonstrating his treatment for his conditions, the supervisory Defendants had no reason to believe that the prison medical staff were mistreating Plaintiff. Further, Plaintiff claims that his mistreatment included the failure of the medical staff to give him name brand prescriptions instead of generic drugs does not establish an Eighth Amendment claim. See James, supra., 230 Fed.Appx. at 198.

Plaintiff alleges that Defendant James, DOC Manager of Grievances and Appeals, refused to properly investigate his grievances regarding both his Eighth Amendment medical care claim and his Eighth Amendment excessive confinement claim. (Doc. 18, p. 5). However, as the Court in Wesley v. Dombrowski 2004 WL 1465650 *7 (E.D.Pa.), stated:

There is also no constitutional right to require prison officials to investigate an inmate’s grievances. Davage v. United States, No. Civ. A. 97-1002, 1997 WL 180336, *3, 1997 U.S. Dist. LEXIS 4844, at * 9 (E.D.Pa. Apr. 11, 1997);see also Robinson v. Love, 155 F.R.D. 535, 536 n. 3 (E.D.Pa.1994) (citing cases).

Since this is Plaintiffs only claim against Defendant James, ie., failure to investigate Plaintiffs grievances, we shall recommend that this Defendant be granted summary judgment with respect to Plaintiffs entire case as against him.

Plaintiff indicates that his serious medical conditions were his kidney condition, his hypertension and diabetes, which required a prescribed medical diet, as well as his “submandibular gland” and skin rash. (Doc. 18, pp. 8-10). In his April 10, 2007 Memorandum (Doc. 194, p. 10) Plaintiff states that his Eighth Amendment right was violated since the drugs he was given by Defendants were generic and not brand names and since he was refused his medical diet, seemingly for his diabetes condition. The record indicates that Plaintiffs medical conditions were as follows:

On August 2, 2000, Mr. Atwell received an exam and a medical review, which noted that he had been diagnosed with several chronic conditions, including hypertension, gout, type 2 diabetes (non-insulin dependent), sia-loadenitis of the left submandibular gland and a history of renal artery stenosis following a 1997 bilateral renal angioplasty.

(Doc. 184, Ex. C, ¶ 6.).

We agree, in part, with Defendants’ note, Doc. 185, p. 4, n. 1, that all of the non-medical staff Commonwealth Defendants should be granted summary judgment with respect to Plaintiffs Eighth Amendment medical care claim since Plaintiff was at all relevant times under the care of the prison medical staff, and in particular Medical Defendants, Dr. Bohin-ski and Dr. Stanish. We find that the Commonwealth Defendants who are alleged to be part of the prison’s medical staff include Defendants Nurses Harrison and Ginocchetti, as Defendants note, but we also find that the medical staff Defendants include Defendant Thomas, RN. (Doc. 18, p. 10). Plaintiff also states that Defendant Doknovitch was personally involved with respect to his Eighth Amendment medical care claim since this Defendant was the culinary manager, and that this Defendant refused to provide Plaintiff with his prescribed medical diet for his serious medical conditions. (Doc. 18, p. 11, !W.).

Thus, we agree with Defendants that all remaining Commonwealth Defendants, except for Defendants Nurses Harrison, Ginocchetti and Thomas, as well as Defendant Doknovitch, should be dismissed based on Durmer and Spruill since the undisputed evidence shows that Plaintiff was, at all relevant times, being treated by the prison medical staff at SCI-Dallas. Because Plaintiff was being treated by the prison medical staff, the non-medical Commonwealth Defendants (all Commonwealth Defendants except for Harrison, Ginocchetti, Thomas, and Doknovitch) should be dismissed with respect to Plaintiffs Eighth Amendment medical care claim pursuant to Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir.1993). See James, supra, 230 Fed.Appx. at 198.

The Plaintiff does not allege with any specificity what the personal involvement of Defendants Lavan, Beard, James, Burks, Kelchner, Razor, Marsella, Griffith, Hildebrand, Bernard, Shaffer, McGrady, Faneck, Leachey, Zaledonis, Burnett, Putnam, Keller, West, Tucker, Smith, Morris, Higgins, Blizzard, Meyers, Gaughan, Martinez, Ryan, McCrone, Zwierzyna, Selvey and Dietrich were with respect to his medical care claim, and with respect to the decisions as to what treatment he should receive. (Doc. 18, pp. 3-12). Nor does Plaintiff state their involvement with the medical care he received for his stated conditions. In fact, Plaintiff does not allege that the stated Commonwealth Defendants denied him proper medical care. Plaintiff also avers that he was under the care of Defendants Dr. Bohinski and Dr. Stanish as well as the Commonwealth Medical Defendants, Harrison, Ginocchetti and Thomas. In short, Plaintiff does not specify how the stated Commonwealth Defendants were deliberately indifferent to his safety and his health, nor how these Defendants played a'role in the medical care he received at SCI-Dallas.

The James Court, 203 Fed.Appx. at 198, stated as follows:

We also agree with the district court that James failed to state an Eighth Amendment claim against the remaining appellees, Beard, Burks, Ellers, and Tennis. FN2 Because this action is under § 1983, James cannot rely solely on respondeat superior as a theory of liability. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988), These various prison officials and administrators are not physicians, and a non-medical prison official is not charged with deliberate indifference for withholding adequate medical care from a prisoner being treated by medical personnel absent “a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner.” Spruill, 372 F.3d at 236. Once a prison grievance examiner becomes aware of potential mistreatment, the Eighth Amendment does not require him or her to do more than “review [ ] ... [the prisoner’s] complaints and verif[y] with the medical officials that [the prisoner] was receiving treatment.” Greeno v. Daley, 414 F.3d 645, 655 (7th Cir.2005) (citing Spruill, 372 F.3d at 236). The evidence presented by James conclusively shows that he received treatment from Dr. Barnes and he simply has not alleged any facts implicating these officials other than that they responded unfavorably to his later-filed grievances. Accordingly, the district court did nor err in dismissing James’ Eighth Amendment claims against Beard, Burks, Ellers, and Tennis. (Footnote omitted).

“A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an inmate violates the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) citing Helling v. McKinney, 509 U.S. 25, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993); Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991); Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). An inadequate medical care claim, as we have here, requires allegations that the prison official acted with “deliberate indifference to serious medical needs” of the plaintiff, while a prisoner. Estelle, 429 U.S. at 104, 97 S.Ct. 285 (1976); Unterberg v. Correctional Medical Systems, Inc., 799 F.Supp. 490, 494-95 (E.D.Pa.1992). The official must know of and disregard an excessive risk to inmate health or safety. Farmer, 511 U.S. at 837, 114 S.Ct. 1970. “[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. “The question ... is whether prison officials, acting with deliberate indifference, exposed a prisoner to a sufficiently substantial ‘risk of serious damage to his future health.’ ” Farmer, 511 U.S. at 843, 114 S.Ct. 1970.

In order to state a viable Eighth Amendment claim, a prisoner must demonstrate that the Defendant was deliberately indifferent to his medical needs and that those needs were serious. Estelle, 429 U.S. at 106, 97 S.Ct. 285.

In the case of Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir.1987), cert. denied, 486 U.S. 1006, 108 S.Ct. 1731, 100 L.Ed.2d 195 (1988), the Court addressed whether the Plaintiffs alleged injuries rose to the level of being sufficiently serious for the purpose of establishing an Eighth Amendment violation.

The Monmouth County case stated that:

“A medical need is ‘serious,’ in satisfaction of the second prong of the Estelle test, if it is ‘one that has been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would easily recognize the necessity for a doctor’s attention.” Pace v. Fauver, 479 F.Supp. 456, 458 (D.N.J. 1979), aff'd, 649 F.2d 860 (3d Cir.1981); accord Laaman v. Helgemoe, 437 F.Supp. 269, 311 (D.N.H.1977). The seriousness of an inmate’s medical need may also be determined by reference to the effect of denying the particular treatment. For instance, Estelle makes clear that if ‘unnecessary and wanton infliction of pain,’ 429 U.S. at 103, 97 S.Ct. at 290, results as a consequence of denial or delay in the provision of adequate medical care, the medical need is of the serious nature contemplated by the eighth amendment. See Id, at 105, 97 S.Ct. at 291. In addition, “where denial or delay causes an inmate to suffer a life-long handicap or permanent loss, the medical need is considered serious. (Citations omitted).”

Monmouth County, 834 F.2d at 347(3d Cir.1987).

In the recent case of James, supra, 230 Fed.Appx. at 197-198, the Third Circuit stated:

Although James may have preferred a different course of treatment, his preference alone cannot establish deliberate indifference as such second-guessing is not the province of the courts. See Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir.1979) (“[c]ourts will ‘disavow any attempt to second-guess the propriety or adequacy of a particular course of treatment ... (which) remains a question of sound professional judgment.’ ”); see also White v. Napoleon, 897 F.2d 103, 110 (3d Cir.1990) (doctor’s choice of one drug over another is not actionable). Further there is no indication that Dr. Barnes’ decision was based on an ulterior motive beyond routine patient care within the confines of the Department’s policies. See Spruill v. Gillis, 372 F.3d 218, 237 (3d Cir.2004) (noting that in order to state a deliberate indifference claim, a plaintiff should in some way “eonnect[ ] his factual allegations to the alleged mental states” of the defendants); see also Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir.1993) (allegations of a deliberate denial of treatment “motivated by non-medical factors” are sufficient to state an Eighth Amendment claim). Thus, the district court correctly held that James’ allegations could not constitute deliberate indifference.

The Court in James, supra, 230 Fed.Appx. at 197, also stated:

The standard for cruel and unusual punishment under the Eighth Amendment, established by the Supreme Court in Estelle v. Gamble, 429 U.S. 97, 104, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), and its progeny, has two prongs: 1) deliberate indifference by prison officials and 2) serious medical needs. See Monmouth County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir.1987); see also Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.1999). “It is well-settled that claims of negligence or medical malpractice, without some more culpable state of mind, do not constitute ‘deliberate indifference.’ ” Rouse, 182 F.3d at 197. “Nor does mere disagreement as to the proper medical treatment support a claim of an eighth amendment violation.” Lanzaro, 834 F.2d at 346. Grossly negligent behavior, however, can constitute deliberate indifference as can a doctor’s choice to take an “easier and less efficacious course of treatment” in response to a serious medical need. Id. at 347.

The only remaining Commonwealth Defendants with respect to Plaintiffs Eighth Amendment medical care claim are Harrison, Ginocchetti and Thomas, as well as Doknovitch. We agree with Commonwealth Defendants (Doc. 200, pp. 2-3) that the medical records submitted by Defendants demonstrate that all of Plaintiffs medical needs were treated. (Doc. 184, Ex. C, attached medical records). Since Plaintiffs voluminous medical records speak for themselves, and since we have adopted Commonwealth Defendants’ SMF’s regarding Plaintiffs Eighth Amendment medical care claim, we shall not discuss in detail all of the medical care Plaintiff received at SCI-Dallas. As we stated above, Defendants have relied upon specific evidence (Doc. 184, Ex. C and attached medical records) to support each and every one of ¶’s 22.-46. of their medical claim SMF’s (Doc. 184, pp. 6-11) as well as Plaintiffs voluminous prison medical records (Doc. 184, attached to Ex. C, Leskowsky’s Declaration), and thus, we have adopted them in their entirety and incorporated them herein by reference. We agree with Defendants that their SMF’s show that Plaintiff received medical care while he was confined at SCI-Dallas for all of his conditions. (Doc. 185, p. 6). We also agree with Defendants that the record shows that Plaintiffs complaints only amount to disagreements with the prison medical staffs opinions as to the care he required. As the James Court held, such disputes do not amount to an Eighth Amendment claim. 230 Fed.Appx. at 197-98.

As to Defendant Nurses Harrison and Ginocchetti, and their alleged conduct related to Plaintiffs Eighth Amendment medical claim, Plaintiff testified that these Defendants were liable since they failed to perform their nurse duties by making sure that he received the treatment he felt was required for his submandibular gland condition, which was the removal of the gland. Simply because Plaintiff felt that this gland condition required the removal of the gland and Defendant Nurses Harrison and Ginocchetti did not ensure that his gland was in fact removed does not establish a violation of Plaintiffs Eighth Amendment rights. As the James Court indicated, Plaintiffs disagreement with his medical care does not amount to an Eighth Amendment violation. (Doc. 184, Ex. A, NT 48—49). Further, the decision as to whether Plaintiffs gland condition required surgical removal of the gland was clearly a decision of the doctors, and not the Defendant nurses.

Additionally, as Commonwealth Defendants state in their Reply Brief (Doc. 200, p. 2), Plaintiff has only argued in his Brief that Defendants violated his Eighth Amendment rights since the “drugs given Plaintiff were generic, not brand name, and Plaintiff was refused medical diet.” (Doc. 194, p. 10), As the James Court indicated a “doctor’s choice of one drug over another is not actionable.” 203 Fed.Appx. at 198 (citation omitted).

Plaintiff submitted evidence and argued (Doc. 194, p. 10) that after his release from prison, his Social Security Disability application for Supplemental Security Income (“SSI”) benefits was granted on May 22, 2006 commencing June 22, 2004. (Doc. 191, Ex. 32). We agree with Commonwealth Defendants that this evidence does not controvert Defendants’ evidence consisting of Plaintiffs prison medical records which show that they were not deliberately indifferent to any of his serous medical conditions during his incarceration. (Doc. 200, p. 2). As stated above, in Goode, the Court stated that “the non-moving party must point to some evidence in the record that creates a genuine issue of material fact,’ and ‘cannot rest solely on assertions made in the pleadings, legal memorandum or oral argument.’ ” Goode v. Nash, supra, 241 Fed.Appx. 868. Simply because Plaintiff was found disabled for performing work after his incarceration with respect to his SSI application does not show that Defendants deliberately failed to give him proper medical care while he was in prison.

Moreover, with respect to Defendant CO West, and Plaintiffs claim that he complained about being housed with a smoking cell mate (Doc. 18, p. 8), as in the Goode case, 241 Fed.Appx. 868, we do not find that Plaintiff has met “his burden of pointing to some evidence in the record that creates a genuine issue of material fact regarding his allegations that Defendant violated his Eighth Amendment rights by exposing him to second-hand smoke.” Nor do we find any evidence that Defendant Doknovitch and Defendant CO Smith denied Plaintiff his prescribed therapeutic diet. (Id., p. 11, p. 9). Rather, the evidence shows that Plaintiff was placed on the therapeutic diet list for diabetes and that he was provided with this diet. (Doc. 184, Ex. C, ¶ 7.). In fact, as Defendants point out (Doc. 185, p. 6), in his deposition, Plaintiff admitted that he was prescribed a therapeutic diet and that he received it. (Doc. 184, Ex. A, NT 81). Indeed, Plaintiff only claimed that his prescribed therapeutic diet did not do anything for gout and hypertension. Regardless, the diet was prescribed for Plaintiffs diabetes condition as the records show. The records also show, and Plaintiff concedes, that he was given his prescribed diet. Plaintiffs dispute as to the efficacy of this prescribed diet with respect to his gout and hypertension conditions, does not establish an Eighth Amendment claim against any Defendant.

We find that Plaintiff has not met the first hurdle of Estelle, i.e., any of the Commonwealth Defendants were deliberately indifferent to his medical needs. We do not find that Plaintiff has sufficiently refuted Defendants’ evidence, which demonstrates that they provided him with medical care and that none of them personally denied him proper medical care for his conditions. Considering all of Defendants’ undisputed evidence, and in particular Plaintiffs prison medical records, we find that Plaintiff has failed to prove his Eighth Amendment denial of medical care claim against any of the Commonwealth Defendants. In short, Plaintiff has not controverted Defendants’ evidence, which shows that they were not deliberately indifferent to his medical needs. Thus, we agree with Commonwealth Defendants (Doc. 200, p. 3) and shall recommend that their Summary Judgment Motion with respect to Plaintiffs Eighth Amendment denial of medical care claim be granted.

2. First Amendment Access to Court Claim

We now consider Plaintiffs First Amendment access to courts claim. As stated above, we have adopted all of the Commonwealth Defendants’ SMF’s regarding the facts and evidence pertaining to Plaintiffs First Amendment access to courts claim. (Doc. 184, pp. 11-15). We agree with Commonwealth Defendants’ Reply Brief which states that their SMF “establishes ... [that] the prison policies on stationary, postage and storage of records were reasonable and did not operate to deprive Plaintiff of his right of access to courts.” (Doc. 200, p. 3).

Plaintiff alleges that his legal files were confiscated which prevented him from pursuing a reconsideration motion with the Third Circuit in an appeal case docketed to C.A. No. 01-1209/2155, (3d Cir.) which he states created difficulty in his pursuit of his instant case docketed in this Court to 03-CV-1728, M.D. Pa., and in pursuing his unspecified appeals of his criminal cases in the Pennsylvania courts. (Doc. 18, p. 13).

Plaintiff must allege an actual injury regarding his First Amendment denial of access to courts claim. See O’Connell v. Williams, 241 Fed.Appx. 55 (3d Cir.2007). We concur with Defendants that, insofar as Plaintiff claims that he was not given adequate copies, this does not establish a First Amendment denial of access to courts claim. (Doc. 185, p. 8). As the O’Connell Court stated:

The Supreme Court has recognized that “adequate law libraries” are a component of the right of access to the courts. See Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977).

Id., 241 Fed.Appx. at 57-58. Copying service at the prison is not tantamount to an adequate law library, and Plaintiff does not show how he was actually injured in any of his cases with respect to not having adequate copies. As Defendants state, Plaintiff, as a pro se inmate at the relevant time, certainly could have filed handwritten copies of his documents. (Id.).

The Court in Shane v. Fauver, 209 Fed.Appx. 87, 89 (3d Cir.2006) (Non-Precedential), stated:

It is settled that an inmate who alleges a violation of the right of access to the courts must show actual injury. See Lewis v. Casey, 518 U.S. 343, 349, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). In this case, Stewart’s claim concerns the negative impact on his parole board litigation. As explained by the District Court, the actual injury requirement is not met by every type of frustrated legal claim; constitutional protections are applied only to a prisoner’s direct or collateral attack on his or her sentence, or challenges to prison conditions. Id. at 354-55, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606.

At the outset, we find that Plaintiff only alleges the following Commonwealth Defendants were personally involved with respect to his First Amendment access to courts claim: Lavan; Beard; McGrady; Faneck, SCI-Dallas Business Manager; CO West; CO Tucker; Morris; Higgins, Manager of “I.D. Room;” and Thomas, RN. (Doc. 18, pp. 2, 4, 6, 8, 9). Thus, we shall recommend that the remaining Commonwealth Defendants, in addition to the eight (8) PA Board member Defendants, be granted summary judgment with respect to Plaintiffs First Amendment access to courts claim, namely, James, Burks, Kelchner, Razor, Marsella, Griffith, Hildebrand, Bernard, Shaffer, Leachey, Zaledonis, Burnett, Putnam, Keller, Smith, Blizzard, Meyers, Gaughan, Martinez, Ryan, McCrone, Zwierzyna, Selvey and Dietrich. See Rode, supra.

With respect to supervisory Defendants Lavan, Beard, and McGrady, Plaintiff alleges they were personally involved in his First Amendment denial of access to courts claim with respect to their action regarding his grievances. (Doc. 18, pp. 3, 4, 6). Since, as discussed above, Plaintiff had no constitutional right to file a grievance in the first place, and since he has a court remedy with respect to his claims against Defendants, i.e. this civil rights action, we do not find that Plaintiff has even stated a First Amendment access to courts claim against these three supervisory Defendants. See Weakley, supra.

That leaves the following Commonwealth Defendants who were alleged to have been involved with Plaintiffs stated First Amendment claim: Faneck, SCI-Dallas Business Manager; CO West; CO Tucker; Morris; Higgins, Manager of “I.D. Room;” and Thomas, R.N. As to Defendant Faneck, Plaintiff alleged that he denied him access to the courts by “refusing postage for legal mail and copies, causing untimeliness and illegally deducting monies for in forma pauperis accounts of Plaintiffs (sic) beyond 28 U.S.C. § 1915(b) limitation requirements.” (Doc. 18, pp. 6-7). Plaintiff alleges in the present action that Defendant Faneck illegally deducted money from his prison account while he was an inmate at SCI-Dallas regarding funds for postage for legal mail and copies. The Plaintiff seeks, in part, monetary damages for his claims. (Id. at p. 15). This claim against Defendant Fa-neck of Plaintiffs Amended Complaint is subject to dismissal for failure to state a claim.

A claim that state officials have deprived a prisoner of personal property does not state a recognizable § 1983 action. See Rossiter v. Andrews, 1997 WL 137195 (E.D.Pa.). As the Court in Parratt stated, “the existence of an adequate state remedy to redress property damage inflicted by state officers avoids the conclusion that there has been any constitutional deprivation of property without due process of law within the meaning of the Fourteenth Amendment.” 451 U.S. at 542, 101 S.Ct. 1908. (quoting Bonner v. Coughlin, 517 F.2d 1811, 1319 (7th Cir.1975)). Furthermore, it is not relevant whether the alleged loss of the inmate’s property occurred as the result of negligent or intentional conduct. Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). In our case, Plaintiff alleges Defendant Faneck “illegally” deducted money from his informa pauperis account and that this was not proper. (Doc. 18, p. 7).

The Rossiter Court stated that “Pennsylvania does provide an adequate remedy for inmates whose property has been lost, stolen, or destroyed by prison officials. Inmate grievance procedures, as well (sic) the Political Subdivision Tort Claims Act, 42 Pa. Cons.Stat. Ann. § 8541-8546, are also available to Plaintiff, and provide him with adequate postdeprivation remedies.” See Iseley v. Horn, 1996 WL 510090 (E.D.Pa.), aff'd 259 F.3d 716 (3d Cir.2001) (finding Pennsylvania inmate grievance procedures to be a meaningful post-deprivation remedy for the loss of property by a corrections officer); see also Murray v. Martin, 720 F.Supp. 65 (E.D.Pa.1989) (noting that a prisoner alleging the intentional theft of his property by a corrections officer may pursue a civil damage action pursuant to the Pennsylvania Political Subdivision Tort Claims Act). This same conclusion has been reached by courts in other states in which the state Department of Corrections has a policy regarding inmates’ claims for lost or damaged property by prison officials. See Hubenthal v. County of Winona, 751 F.2d 243, 246 (8th Cir.1984) (holding that even unauthorized deprivation of property by state officials does not violate due process requirements if meaningful post-deprivation remedy is available). See also Simpson v. Hvass, 36 Fed.Appx. 221 (8th Cir.2002).

Therefore, Plaintiff has failed to state a viable § 1983 claim with respect to the alleged “illegal” deduction of his prison account money by Defendant Faneck.

In his deposition, Plaintiff testified with respect to his First Amendment access to courts claim, and he stated that he was not given adequate postage and that he was denied access by Defendant Higgins to his legal materials stored in the prison ID Room. (Doc. 184, Ex. A, NT 30-31). Plaintiff stated that his allegations constituted an access to courts claim since “If [he] wasn’t in prison, I’d have access to courts.” (Id., NT 32). As to his injury related to his First Amendment access to courts claim, Plaintiff testified as follows:

Q____Are you aware today of any specific deadlines in any civil actions that you were not able to meet because you didn’t have sufficient postage to mail something to the court?

A. I can’t remember the specific docket numbers.

Q. Well, other than the docket numbers, can you remember anything about a deadline and any action that you missed because you didn’t have enough postage?

A. With my civil actions, I’ve had so many submittals that I can’t remember every submittal.

Q. Okay. So just so I understand, as you sit here today you can’t_without looking through all your papers you can’t tell me _you can’t recall any instance when you missed a specific deadline because of having__

A. I can’t give you the factual numbers at the present time.

Q. Can you tell me anything about the case that you missed the deadline because you