Romansky v. Stickman

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit

9-19-2005

Romansky v. Stickman
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3036

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 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 04-3036
________________

STEVEN L. ROMANSKY,

Appellant

v.

WILLIAM S. STICKMAN, Superintendent;
SHARON L. D’ELETTO, Superintendent’s Assistant;
JEFFREY A. MARTIN, Captain/Unit Manager;
SHARON A. SEBEK, Librarian
____________________________________

On Appeal From the United States District Court
For the Western District of Pennsylvania
(W.D. Pa. Civ. No. 03-cv-01053)
District Judge: Honorable Donetta W. Ambrose
_______________________________________

Submitted Under Third Circuit LAR 34.1(a)
AUGUST 5, 2005

Before: ALITO, SMITH AND COWEN, Circuit Judges.

(Filed: September 19, 2005)

_______________________

OPINION
_______________________
PER CURIAM

Steven Romansky, a Pennsylvania state prisoner proceeding pro se, appeals an

order of the United States District Court for the Western District of Pennsylvania

dismissing his civil rights action against prison officials and employees. We will affirm

the District Court’s order.

In his complaint, Romansky alleges that he tried to file a habeas petition in District

Court, and the Clerk returned it to him because he did not provide the required number of

copies. Romansky states he submitted a request to prison employees looking for an

alternative to file his petition, but they returned it, stating that the policy for indigent

inmates did not apply to his filing. He filed a grievance, which was denied.

Romansky further alleges that after he told a prison employee that he did not

receive a copy of his grievance, he received a misconduct charging him with lying. A

hearing examiner dismissed the charge without prejudice. Although the facts are unclear,

the same employee then issued another misconduct containing the same charges. At the

second hearing, the examiner found Romansky guilty, and imposed a sanction of punitive

segregation.

Romansky submitted additional requests for copies of his grievance and his

misconducts, and documents related to his grievance appeals, but did not receive them.

He filed a second grievance alleging denial of access to the courts and the grievance

system, and retaliation. Prison officials responded that these issues were already

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addressed. Romansky filed a third grievance after the library refused to copy documents

for another lawsuit, and officials responded that copies are not free of charge.

Romansky claims the defendants violated his constitutional right to access to the

courts, and retaliated against him for attempting to litigate and for filing grievances. The

District Court adopted the Magistrate Judge’s recommendation to dismiss the complaint

under the screening provisions of the Prison Litigation Reform Act for failure to state a

claim upon which relief can be granted. This appeal followed. We have jurisdiction

pursuant to 28 U.S.C. § 1291. Our standard of review is plenary. See Tourscher v.

McCullough, 184 F.3d 236, 240 (3d Cir. 1999).

In recommending the dismissal of Romansky’s access to courts claim, the

Magistrate Judge correctly stated that Romansky failed to allege that the habeas petition

that he was unable to file was nonfrivolous, identify the underlying cause of action, and

plead that his claim would provide a remedy that could not otherwise be obtained. See

Christopher v. Harbury, 536 U.S. 403, 415 (2002) (requiring such allegations to state an

access to courts claim). As noted by the Magistrate Judge, Christopher requires that “the

predicate claim be described well enough to apply the ‘nonfrivolous’ test and to show that

the ‘arguable’ nature of the underlying claim is more than hope.” Id. at 416. Romansky

has not made this showing.

We also agree with the District Court that Romansky does not state a First

Amendment claim based upon his allegations that the defendants interfered with, or did

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not respond to, his grievances. Romansky’s access to the District Court satisfies his right

to petition the government. See Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7 th Cir. 1996)

(holding the invocation of the judicial process indicated that the prison had not infringed

the prisoner’s First Amendment rights). In addition, in light of the fact that he was found

guilty of misconduct, Romansky does not state a retaliation claim based upon his receipt

of a misconduct after he told a prison employee that a copy of his grievance was lost. See

Henderson v. Baird, 29 F.3d 464, 469 (8 th Cir. 1994) (stating that a finding that a prisoner

violated the rules checkmates his retaliation claim).

Romansky argues in his brief that he states an Eighth Amendment claim because

he must write everything he files with the courts, causing eye strain and paralysis in his

hand, and he must sell his meals to afford legal supplies. We agree with the District

Court that Romansky does not state such a claim because he has not been deprived of the

minimal civilized measure of life’s necessities. See Tillman v. Lebanon County Corr.

Facility, 221 F.3d 410, 417-18 (3d Cir. 2000). We also reject Romansky’s argument that

he states a claim for oppression under 18 Pa. Cons. Stat. § 5301 because he did not

include this claim in his complaint. Finally, the District Court did not abuse its discretion

in denying Romansky’s motion for appointment of counsel.

Accordingly, we will affirm the order of the District Court.