NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-4776
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JUSTIN MICHAEL CREDICO,
Appellant
v.
C.O. GUTHRIE, IN HIS INDIVIDUAL CAPACITY;
C.O. ENGLISH, IN HIS INDIVIDUAL CAPACITY;
CEO OF MATHEW BENDER AND COMPANY INC.,
A MEMBER OF THE LEXIS NEXIS GROUP, IN HIS INDIVIDUAL CAPACITY
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 13-cv-04476)
District Judge: Honorable Juan R. Sanchez
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 23, 2014
Before: CHAGARES, GARTH and SLOVITER, Circuit Judges
(Opinion filed: June 25, 2014)
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OPINION
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PER CURIAM
Pro se appellant, Justin Credico, appeals from the order of the United States
District Court for the Eastern District of Pennsylvania summarily dismissing his civil
rights action. We will affirm the District Court’s judgment.
While incarcerated at the Chester County Prison, Credico filed a complaint under
42 U.S.C. § 1983, which he sought to proceed with in forma pauperis pursuant to
28 U.S.C. § 1915. He named Correctional Officers Guthrie and English, as well as the
Chief Executive Officer (“CEO”) of the Matthew Bender Company. Credico alleged that
the Correctional Officers interfered with his right to access the courts. In particular,
Credico stated that back in December 2012, Officer English directed a counselor to
confiscate certain case-related materials that Credico had requested from the law
librarian, and that on one occasion in July 2013, Officer Guthrie cut short his time in the
law library. He further alleged that the CEO of the Matthew Bender Company failed to
warn prison officials of the “illegalities” of confiscating a prisoner’s case law, thereby
causing a breach of contract and the “Lexis Nexis Master Agreement.” See Compl. at 3,
¶ III.
The District Court granted Credico in forma pauperis status and screened the
complaint for dismissal under § 1915(e)(2)(B). The District Court concluded that the
complaint was subject to summary dismissal. The District Court dismissed the complaint
against the CEO of the Matthew Bender Company because Credico made no allegations
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in his complaint which would allow the court to find that the CEO was a state actor. See
West v. Atkins, 487 U.S. 42 (1988).
With respect to Officers Guthrie and English, the District Court determined that,
while prisoners retain the right to access the courts to pursue challenges to their sentences
and to conditions of their confinement, Credico’s complaint failed to show that the
actions of the Correctional Officers caused him to suffer actual harm to his litigation
efforts or that he has no other remedy to compensate him for any lost claims. See
Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008). Further, having concluded that
amendment would be futile, the District Court refused to afford Credico an opportunity to
amend the complaint. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.
2002). This appeal followed.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291, and exercise plenary
review over the District Court’s sua sponte dismissal under § 1915(e)(2). Allah v.
Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). The legal standard for dismissing a
complaint for failure to state a claim under § 1915(e)(2)(B)(ii) is the same as that for
dismissing a complaint pursuant to a motion filed under Rule 12(b)(6) of the Federal
Rules of Civil Procedure. See id. “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
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Upon careful consideration, we agree with the District Court’s assessment of
Credico’s complaint, and we will affirm for substantially the reasons stated in the District
Court’s opinion. Credico did not set forth allegations that would allow for the conclusion
that the CEO of the Matthew Bender Company was a state actor. See West, 487 U.S. at
48 (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981)). Additionally, as the District
Court correctly noted, an inmate raising an access to the courts claim must show that the
denial of access caused him to suffer an actual injury. See Lewis v. Casey, 518 U.S. 343,
351 (1996). An actual injury occurs when the prisoner is prevented from or has lost the
opportunity to pursue a “nonfrivolous” and “arguable” claim. See Christopher v.
Harbury, 536 U.S. 403, 415 (2002). After reviewing the complaint, we agree with the
District Court that Credico failed to sufficiently allege an access to the courts claim.
Specifically, he failed to identify an “actual injury” that he has suffered as a result of the
alleged confiscation of his case-related research or the single instance in which his law
library time was cut short.
In his appellate brief, Credico contends that the District Court “failed to grasp”
that he was also attempting to assert a retaliation claim against the Correctional Officers.
Even with the liberal construction afforded a pro se litigant, we cannot conclude that the
District Court erred in failing to extract a retaliation claim from Credico’s complaint
given the allegations set forth therein. Moreover, in light of the nature of the factual
allegations set forth in Credico’s complaint, we further find no abuse of discretion on the
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part of the District Court in determining that allowing him leave to amend his complaint
would have been futile. See Grayson, 293 F.3d at 108.
As we discern no error in the District Court’s summary dismissal of Credico’s
complaint, we will affirm the judgment of the District Court.
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