Filed: Oct. 12, 2006
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 10-12-2006 Picquin-George v. Warden Precedential or Non-Precedential: Non-Precedential Docket No. 06-2850 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Picquin-George v. Warden" (2006). 2006 Decisions. Paper 328. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/328 This decision is brought to you for free and open access by the Opinio
Summary: Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit 10-12-2006 Picquin-George v. Warden Precedential or Non-Precedential: Non-Precedential Docket No. 06-2850 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006 Recommended Citation "Picquin-George v. Warden" (2006). 2006 Decisions. Paper 328. http://digitalcommons.law.villanova.edu/thirdcircuit_2006/328 This decision is brought to you for free and open access by the Opinion..
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Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
10-12-2006
Picquin-George v. Warden
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2850
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Picquin-George v. Warden" (2006). 2006 Decisions. Paper 328.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/328
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
ALD-2 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
NO. 06-2850
________________
JOHN T. PICQUIN-GEORGE a/k/a JOHN R. DALEY, JR.
Appellant,
v.
WARDEN, FCI ! SCHUYLKILL;
THE HEALTH ADMINISTRATION DEPT.
____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 05-cv-02181)
District Judge: Honorable Malcolm Muir
____________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
October 5, 2006
Before: SLOVITER, McKEE and FISHER, Circuit Judges.
(Filed: October 12, 2006 )
_______________________
OPINION
_______________________
PER CURIAM
Appellant, John T. Picquin-George a/k/a John R. Daley, Jr. (“Daley”), proceeding
pro se and in forma pauperis, appeals an order of the United States District Court for the
Middle District of Pennsylvania dismissing his complaint. Because this appeal is
meritless, we will dismiss it under 28 U.S.C. § 1915(e)(2)(B)(i).
Daley, an inmate at the Federal Correctional Institute at Schuylkill, commenced
this Bivens action against the prison’s warden and health administration department
(“Appellees”). Daley’s original complaint sets forth allegations that the prison
improperly denied his requests for more comprehensive HIV testing, that the prison
denied him sufficient access to the institution’s law libraries, that the law library located
in the prison’s segregation unit maintains an inadequate collection of legal research
materials, and that he was retaliated against for requesting employment at the law library.
The Magistrate Judge immediately screened the complaint as required by 28
U.S.C. § 1915A, and concluded, in an order entered November 22, 2005, that Daley had
failed to state a claim on which relief may be granted. The order granted Daley leave to
amend the complaint, but because his subsequent filings did not meaningfully develop his
initial allegations, the Magistrate Judge issued a report and recommendation on January 9,
2006, advising dismissal pursuant to 28 U.S.C. § 1915A(b)(1). Daley timely filed
objections to the Magistrate Judge’s report on the grounds that he had never consented to
referral of his case to a magistrate, that the court did not have the authority to refer his
suit to a magistrate, and that, for various other reasons, the report erroneously concluded
2
that Daley had failed to state a claim. In spite of these objections, the District Court
adopted the report and recommendation in its entirety and dismissed the case in an order
entered February 15, 2006. This appeal followed.1
As this Court has granted Daley leave to appeal in forma pauperis, his appeal is
subject to dismissal if it lacks an arguable basis in law or fact. See 28 U.S.C.
§ 1915(e)(2)(B); Neitzke v. Williams, 490 U.S. 319, 325 (1989). First, we must consider
whether Daley has stated a non-frivolous claim against Appellees for denying his request
to undergo more comprehensive HIV testing. Daley has attached to his original
complaint a copy of a memorandum he received from the warden, dated September 22,
2005, acknowledging that Daley was given a blood test for the purpose of detecting HIV
and stating that his request for semen and urine testing was being denied because “semen
and urine are not routinely used in the diagnosis of HIV.” Daley alleges that Appellees’
failure to administer these additional tests amounts to a violation of his constitutional and
statutory rights. Specifically, Daley’s original complaint cites to 18 U.S.C. § 4014(a),
1
We have jurisdiction pursuant to 28 U.S.C. § 1291. We consider Appellant’s
notice of appeal timely even though it was not filed until May 22, 2006, over three
months after entry of the judgment being appealed. Subject to certain exceptions not
applicable to this case, a litigant has 150 days to file an appeal of a judgment that is not
“set forth on a separate document.” F ED. R. C IV. P. 58(a)(1), (b)(2)(B); F ED. R. A PP. P.
4(a)(7)(A)(ii). The District Court did not comply with the separate-document rule
because its order language was placed at the end of a seven-page document substantially
devoted to recitation of procedural history and legal analysis. See In re Cedant Corp.
Securities Litigation, 454 F.3d 235, 241 (3d Cir. 2006) (to qualify as a separate document,
an order “must omit (or at least substantially omit) the District Court’s reasons for
disposing of the parties’ claims”).
3
which mandates HIV testing of at-risk federal prisoners sentenced for a term of six
months or more, and 18 U.S.C. § 4048(l), which requires the Federal Bureau of Prisons to
provide prisoners with medically appropriate HIV and AIDS treatment. Daley also
alleges that denial of his request amounts to a violation of the Eighth and Fourteenth
Amendments.
In evaluating these claims, the District Court properly took notice of an online
publication issued by the Centers for Disease Control and Prevention stating that the
drawing of blood is the “standard screening test” used to determine the presence of HIV
and that the accuracy of urine tests is “somewhat less than that of the blood . . . tests.”
United States Dep’t of Health and Human Services, Centers for Disease Control and
Prevention, What are the different HIV screening tests available in the U.S.?, at
http://www.cdc.gov/hiv/resources/qa/qa8.htm (last visited Oct. 4, 2006). Thus, since a
blood test had already been administered, prison medical personnel did not violate their
statutory testing duties by denying Daley’s request for urine and semen testing. It follows
that denial of Daley’s request does not evidence “deliberate indifference to serious
medical needs,” Estelle v. Gamble, 429 U.S. 97, 104 (1976), in violation of the Cruel and
Unusual Punishment Clause of the Eighth Amendment. See Doe v. Wigginton,
21 F.3d
733, 738-39 (6th Cir. 1994). Finally, we find no basis for Daley’s Fourteenth
Amendment claim.
4
We next address Daley’s allegations that the prison segregation unit’s law library
does not contain adequate research materials and that he has been denied sufficient time
to access the prison’s law libraries. Denial of access to a prison law library is actionable
as a constitutional violation only insofar as the denial impedes a prisoner’s constitutional
right of access to the courts. See Lewis v. Casey, 518 U.S. 343, 350-51 (1996).
Accordingly, a prisoner does not have standing to bring a denial of access suit if he
merely alleges that a prison law library is inaccessible or has a deficient collection of
legal research materials. See
id. at 351. Rather, to gain standing, a prisoner must
demonstrate actual injury by alleging that the “shortcomings in the library or legal
assistance program hindered his efforts to pursue a legal claim.” Id.; see also Allah v.
Seiverling,
229 F.3d 220, 224 n.5 (3d Cir. 2000) (holding that prisoner has standing to
bring right of access claim where complaint alleges that lack of access to prison library
resulted in inability to file brief in post-conviction appeal). We agree with the District
Court that Daley’s right of access claims are without merit because he has failed to
describe how the alleged inadequacies have impeded his ability to bring or prosecute a
claim. See Tourscher v. McCullough,
184 F.3d 236, 242 (3d Cir. 1999) (affirming
dismissal of right of access claim because prisoner failed to describe how prison
workload prevented him from pursuing his appeal); Reynolds v. Wagner,
128 F.3d 166,
182-83 (3d Cir. 1997) (affirming dismissal of right of access claim because plaintiffs
failed to allege actual injury derived from challenged prison policy). We also note that
5
while the original complaint cites various regulatory provisions that require federal prison
wardens to ensure prisoners have access to certain minimal library services (i.e., 28
C.F.R. §§ 543.11, 544.100, .101), Daley has failed to set forth comprehensible facts
indicating that the warden has not met these requirements.
Finally, we note that the District Court properly dismissed Daley’s retaliation
claim because he has not alleged that he suffered adverse action as a result of exercising a
constitutional right. See Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003). Moreover,
the retaliation claim fails because he has not alleged that any defendant was personally
involved in the wrongdoing. See Rode v. Dellarciprete,
845 F.2d 1195, 1207 (3d Cir.
1988).
For the foregoing reasons, we agree with the District Court that Daley has failed to
state a claim on which relief may be granted. We also agree that Daley’s objections to the
District Court’s adoption of the Magistrate Judge’s report and recommendation are
groundless. Accordingly, we will dismiss this appeal pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i).
6
