Joseph Johnson, Jr. v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 05-5053
JOSEPH JOHNSON, JR.,
Appellant
v.
ATTORNEY GENERAL OF THE UNITED STATES;
MR. BINGAMAN; CRYSTAL FAUST;
ROD L. KERSTETTER
_______________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 03-cv-00756)
District Judge: Honorable William J. Nealon
_______________________________________
Submitted Under Third Circuit L.A.R. 34.1(a)
June 23, 2006
BEFORE: SLOVITER, SMITH and VAN ANTWERPEN, CIRCUIT JUDGES
(Filed: June 28, 2006)
_______________________
OPINION
_______________________
PER CURIAM
Appellant Joseph Johnson appeals from the District Court order dismissing his
civil rights claim brought under Bivens v. Six Unknown Named Agents on the Federal
Bureau of Narcotics, 403 U.S. 388 (1971). His appeal asks us to decide whether
negligent interference by prison officials states a claim for denial of access to the courts.

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1 Johnson also filed an amended complaint, dropping Crystal Faust as a defendant.
2
For the reasons that follow, we will affirm the order of the District Court.
I.
The parties are familiar with the facts; thus, we only briefly recite them here. In
2002, Johnson was incarcerated at USP-Lewisburg in Pennsylvania. On July 26 or 27 of
that year, Johnson placed an envelope containing a pro se petition for appeal of a criminal
conviction to Virginia Supreme Court in the prison mail deposit box. The time to file his
petition for appeal expired on July 29, 2002. Johnson alleges that he specifically placed
the appeal in the prison mail with the understanding that the mail would be removed on
the morning of July 29, 2002, and date-stamped accordingly, thereby making his appeal
timely. Johnson attached a “cop-out,” or notice, to the envelope alerting the prison staff
that the document needed to be post-marked by July 29. Although Defendant Bingaman
admits that he was responsible for removing the mail from the deposit box on July 29, for
whatever reason the prison post-marked the petition for appeal July 30, 2002. The
Virginia Supreme Court rejected the petition as untimely. Johnson attempted to rectify
the situation, but to no avail.
After exhausting his administrative remedies, Johnson filed the current combined
Bivens and Federal Tort Claims Act (FTCA) complaint.1 In a nutshell, Johnson alleged
that he is entitled to monetary damages under the FTCA because prison employees were
negligent in failing to post-mark the petition for appeal July 29, 2002. He also argued

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2 We have jurisdiction under 28 U.S.C. § 1291.
3
that Bingaman is liable under Bivens for abridging his access to the courts and Kerstetter
is liable under a theory of respondeat superior.
In an order entered September 24, 2004, the District Court granted in part and
denied in part the Defendants’ motion to dismiss. It concluded that 28 U.S.C. § 2680(b)
exempts the current action from the FTCA by excluding claims “arising out of the loss,
miscarriage, or negligent transmission of letters or postal matter.” It also dismissed the
claim against Kerstetter because a civil rights complaint cannot be based on supervisory
liability. It allowed the Bivens action against Bingaman to continue. The District Court
eventually dismissed the complaint for failure to state a claim, concluding that a claim for
the denial of access to the courts cannot be supported by allegations of negligence.
Johnson appeals. 2
II.
In his pro se brief, Johnson abandons his Bivens claim against Kerstetter and those
claims arising under the FTCA. See United States v. Pelullo, 399 F.3d 197, 222 (3d Cir.
2005) (stating it is well-settled that failure to raise or identify an issue in a brief waives
the issue on appeal). He challenges only the District Court’s conclusion that negligent
conduct is not sufficient to support a claim for the denial of access to the courts.
The District Court’s order dismisses the complaint for failure to state a claim,
invoking the language of Federal Rule of Civil Procedure 12(b)(6). However, the District

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Court was presented with and considered evidence outside of the pleadings. We are
constrained, therefore, to treat the decision as the grant of summary judgment under Rule
56, see Ford Motor Co. v. Summit Motor Prods., Inc., 930 F.2d 277, 284 (3d Cir. 1991),
and we exercise de novo review. See Wastak v. Lehigh Valley Health Network, 342 F.3d
281, 285 (3d Cir. 2003).
The right to access the courts, which although not clearly found within any single
constitutional provision, is nonetheless well-established. See Bounds v. Smith, 430 U.S.
817, 824-25 (1977); Gibson v. Superintendent of N.J. Dep’t Law and Pub. Safety Div. of
State Police, 411 F.3d 427, 442 (3d Cir. 2005). Although Bivens and 42 U.S.C. § 1983
do not require any particular state of mind “‘requirement independent of that necessary to
state a violation of the underlying constitutional right,’ . . . not all acts are
unconstitutional simply because of the result.” See Gibson, 411 F.3d at 445 (quoting
Daniels v. Williams, 474 U.S. 327, 330 (1986)). The Supreme Court in Daniels was
called to consider whether a negligent due process deprivation could constitute a
constitutional violation. The Court concluded that the Fourteenth Amendment was not
designed to supplant traditional tort law and, thus, does not encompass protection from
negligent governmental acts. Daniels, 474 U.S. at 332-33.
In Gibson, we extended Daniels to a case where a complainant alleged that New
Jersey police officials denied his access to the courts by failing to disclose relevant racial
profiling information that could have led to an early release from custody. Id. at 444.
Specifically, we held that an official may be liable only if she “wrongfully and

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intentionally” conceals information. Id. Other courts to consider similar issues have
agreed with this position. See Pink v. Lester, 52 F.3d 73, 74 (4th Cir. 1995); Kincaid v.
Vail, 969 F.2d 594, 601-03 (7th Cir. 1992).
The distinctions between the conduct at issue in Gibson and that at issue here is of
little constitutional significance. Both suits challenge prior instances of negligent official
conduct that had the unfortunate result of obstructing or eliminating the ability to bring a
claim, suit, or appeal. Even if the right to access the courts were exclusively founded on
First Amendment (as we note above, it is not) the rationale employed in Daniels applies
with equal force. See Pink, 52 F.3d at 76 (citing McDonald v. Smith, 472 U.S. 479, 482-
83 (1985)) (explaining that to permit recovery for negligent acts would greatly expand the
scope of the First and Fourteenth Amendments).
Johnson has failed to show that Bingaman intentionally or deliberately prevented
his mail from being accurately dated. Accordingly, we will affirm the order of the
District Court. Appellant’s motion to strike the Appellees’ brief is denied. See Fed. R.
App. P. 31©.

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