United States District Court, D. Maryland
RICHARD D. BENNETT, UNITED STATES DISTRICT JUDGE
5, 2017, the Court received for filing the above-captioned
"Emergency Lawsuit" filed by Anthony Kelly, an
inmate housed at the North Branch Correctional Institution
("NBCI"). Kelly filed the Complaint pursuant to 42
U.S.C. § 1983 and Title II of the Americans with
Disabilities Act ("ADA") of 1990, as amended, 42
U.S.C. §§ 12101, et seq., seeking
declaratory and injunctive relief, along with damages. He
claims that on April 10 and April 30, 2017, he sent copy work
request forms to NBCI Case Management Specialist Jordan
Tichnell and Tichnell refused to make the copies. He contends
that Defendants have violated his constitutional right of
access to the courts and he has "suffered
prejudice" from Defendants' actions. ECF No. 1.
Court held Kelly's Motion for Leave to Proceed In Forma
Pauperis in abeyance and directed him to file an Amended
Complaint to show how he experienced real injury from
Tichnell's alleged failure to twice provide him copy work
(ten pages of each of his filings) in April of 2017, so as to
state a colorable access-to-court claim. ECF No. 3. Rather
than filing an Amended Complaint, Kelly, filed a Motion to
Alter/Amend Judgment and another Motion for Leave to Proceed
In Forma Pauperis. ECF Nos. 4 & 5.
Motion to Alter/Amend Judgment, Kelly claimed that his case
is not about Tichnell's denying him access to the courts,
but is rather about Tichnell retaliating against him by not
providing him requested copy work in April of 2017 due to his
filing lawsuits against Tichnell's co-workers . He
maintained that the Court's decision "applied an
erroneous legal standard" and conflicts with Fifth
Circuit case law that addressed the issue. Kelly additionally
argues that his claims raise "an arguable question of
law" and "disputed factual of law" that the
Court has clearly "overlooked" or
"misapprehended." ECF No. 4. Kelly further
discusses the application of the ADA to State prisoners, the
ability to file suit under 42 U.S.C. § 1983 against
those acting "under color of stare law, " and the
inability of the district courts to dismiss a complaint under
Rule 12(b)(6) for failure to state a claim prior to
effectuating service of process. Id. Finally, he
claims that a litigant can seek compensatory damages without
physical injury. Id.
August 7, 2017, Kelly's Motion to Alter/Amend Judgment
was denied. ECF No. 6. The Court observed that Kelly's
original complaint made no reference to retaliation and
purely concerned his claim that he was "subject denied
access to the court when defendant Tichnell acted with
"evil motive or callous[ness]' to Kelly's
constitutional right [of] access to the courts." The
Court granted Kelly an additional period of time to file an
Amended Complaint and continued to hold his indigency motion
in abeyance. Id.
Kelly filed an Amended Complaint. ECF No. 7. He reiterated
his claim that on April 10 and April 30, 2017, he made a
request for Defendant Tichnell to make copies of several
legal documents and Tichnell failed to do so. He adds another
allegation that on June 15, 2017. he again gave Tichnell
several legal documents to make five copies. He claims that
when the copy work was returned to him on June 28. 2017, two
legal documents were missing, other documents had "2 and
3 pages missing, " and Tichnell only sent him one copy
of the remaining pages. Kelly claims that "from this
point" he has no one to make copies for him. He asserts
that Tichnell's acts are in retaliation for Kelly's
pending lawsuit against NBCI. ECF No. 7. Keily goes on to
discuss the application of the Americans With Disabilities
Act (ADA) to State inmates and the legal standards in the
Fifth Circuit for alleging a claim of retaliation. He
maintains that under federal case law, a litigant can
"get compensatory damages even if you have 'NO
PHYSICAL INJURY.'" fit, pp. 3-4.
Motions for Leave to Proceed In Forma Pauperis shall be
granted in this one instance.
Court observes that Kelly has filed approximately forty civil
rights cases in the past twelve years, twelve of which were
dismissed under 28 U.S.C. § 1915(e).
Kelly v. McCarthy, Civil Action No. AW-07-1068 (D.
Md.), Kelly v. Maryland Dep't. of Health & Mental
Hygiene, et al., Civil Action No. AVV-07-1196 (D. Md.),
Kelly v. State of Maryland, et al., Civil Action No.
AW-07-2601 (D. Md.), Kelly v. State of Maryland, el
al.. Civil Action No. A W-07-2757 (D. Md.), Kelly v.
State of Maryland, et al.. Civil Action No. AW-07-2995
(D. Md.), Kelly v. State of Maryland et al., Civil
Action No. AW-07-3017 (D. Md.), Kelly v. State of
Maryland, et al.. Civil Action No. AW-07-3061 (D. Md.),
Kelly v. State of Maryland, Civil Action No.
AW-07-3065 (D. Md.), and Kelly v. State of Maryland, et
al, Civil Action No. AW-07-3254 (D. Md.), the Complaints
were summarily dismissed pursuant to 28 U.S.C. §
l9l5(e). The dismissals did not, however, count as strikes
due to Kelly's status as an individual involuntarily
committed to a state hospital following a finding of
was convicted in the Circuit Court for Montgomery County in
2008. In Kelly v. State of Maryland, et
al, Civil Action No. AW-10-610 (D. Md.), Kelly's
Complaint was summarily dismissed pursuant to 28 U.S.C.
§ 1915(e). He was notified that the dismissal counted as
the first § 1915(e) dismissal. ECF Nos. 6 & 7.
Kelly's appeal was dismissed by the United States Court
of Appeals for the Fourth Circuit, pursuant to Local Rule 45.
Id., ECF No. 13. In Kelly v. Simpson et
al., Civil Action No. RDB-16-4067 (D. Md.), Kelly's
case was summarily dismissed pursuant to § 1915(e).
Kelly was mistakenly notified that this was his
"first" rather than second strike under §
1915(e). Id., ECF Nos. 4 & 5. The United States
Court of Appeals for the Fourth Circuit affirmed that
judgment on July 10, 2017. Id., ECF No. 12. In
Kelly v. Simpson, Civil Action No. RDB-17-2872 (D.
Md.), Kelly's case was once again summarily dismissed. He
was erroneously informed that this dismissal constituted his
"second" rather than third strike under §
1915(e). Id., ECF Nos. 3 & 4. His Motion for
Reconsideration was denied. Id., ECF No. 7. No
appeal was filed.
the preceding information, Kelly has plainly amassed three
"strikes" under 28 U.S.C. § 1915(e). However,
due to the possible confusion incurred with the Court's
communication to Kelly, the bar to be imposed under 28 U.S.C.
§ 1915(g) shall not be enforced at this
time. Kelly is hereby notified that he is now
barred from filing future suits in forma pauperis.
to Kelly's current claims, his Complaint shall be
dismissed without prejudice. Prisoners are entitled to
"a reasonably adequate opportunity to present claimed
violations of fundamental constitutional rights to the
courts." Bounds v. Smith, 430 U.S. 817, 825
(1977); see also Hudspeth v. Figgins, 584 F.2d 1345,
1347 (4th Cir. 1978). In 1996, the Supreme Court
clarified the Bounds decision by finding that a
deprivation of an inmate's right of access to the courts
is actionable, but only when the inmate is able to
demonstrate actual injury from such deprivation. See
Lewis v. Casey, 518 U.S. 343, 349 (1996). According to
the Lewis opinion, the Constitution does not
guarantee inmates the ability to litigate every imaginable
claim they can perceive, only that they be given the tools
necessary "in order to attack their sentences, directly
or collaterally, and in order to challenge the conditions of
their confinement." Id. at 355. Simply put, in
order to state a claim for denial of access to the courts, a
prisoner must provide some basis for his allegation that he
has been deprived of meaningful access to the courts.
White v. White, 886 F.2d 721, 723 (4th Cir. 1989).
addition, a plaintiff must show actual injury resulting from
the alleged denial of access. Lewis, 518 U.S. at
349. The plaintiff must identify with specificity the actual
injury resulting from the defendants' conduct.
Cochran v. Morris, 73 F.3d 1310, 1316-17 (4th Cir.
1996). The "'actual injury' that an inmate must
demonstrate is that the alleged shortcomings in the prison
library or legal assistant program have hindered, or are
presently hindering, his efforts to pursue a non-frivolous
legal claim." Lewis, 518 U.S. at 343; see
also Michau v. Charleston Cnty., S.C., 434 F.3d 725. 728
(4th Cir. 2006) (in access to court claim, inmate must allege
and show that he or she has suffered an actual injury or
specific harm to his litigation efforts as a result of the
afforded the opportunity to amend his Complaint to allege
real injury from Tichnell's alleged acts or inactions,
Kelly has disregarded the Court's directives. He has not
shown how Tichnell's failure to provide him copy work in
April 2017, or proving him less copy work than requested,
with two missing pages, in January of 2017 impeded ...