                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 12-1973
                                     ___________

                                  SEAN PRESSLEY,
                                             Appellant

                                           v.

           C.O.I. ADAM HUBER; UNIT MGR. ROBERT MARSH;
 GRIEV. COOR. IAN TAGGART; SECRETARY PENNSYLVANIA DEPARTMENT
             OF CORRECTIONS; SUPT. DONALD KELCHNER
                  ____________________________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                        (D.C. Civil Action No. 3:08-cv-00450)
                      District Judge: Honorable Edwin M. Kosik
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   August 23, 2013

             Before: SMITH, CHAGARES and SHWARTZ, Circuit Judges

                             (Opinion filed: April 4, 2014)
                                    ___________

                                      OPINION
                                     ___________

PER CURIAM

      Sean Pressley, proceeding pro se, appeals from the District Court’s orders granting

in part and denying in part the defendants’ motion to dismiss and granting defendant

Huber’s motion for summary judgment. For the following reasons, we will affirm.
                                               I.

       In March 2008, Pressley, a Pennsylvania inmate, filed a complaint pursuant to 42

U.S.C. § 1983 against prison officials at SCI Camp Hill, alleging that they had deprived

him of personal property, retaliated against him for filing grievances, and denied him

access to the courts. Many of his allegations arose from his lawsuit filed in Pressley v.

Horn, W.D. Pa. Civ. No. 2:99-cv-01956. In April 2004, Pressley appealed the District

Court’s adverse judgment in Pressley v. Horn to this Court. See Pressley v. Horn, No.

04-2150. Prior to filing his appeal, Pressley was transferred to SCI Camp Hill, where he

was in possession of excess legal material.1

       In January 2005, Huber was provided with a list of Pressley’s open and closed

litigation actions because Pressley was in possession of excess legal material. This list

noted that Pressley’s appeal in Pressley v. Horn had been closed. However, this appeal

was not closed for failure to prosecute until November 2006. See Pressley v. Horn, No.

04-2150 (order entered Nov. 20, 2006). Huber confiscated Pressley’s materials related to

Pressley v. Horn, and they were subsequently destroyed in May 2005. Huber also

confiscated and destroyed materials related to Pressley’s other closed actions.

       The District Court granted in part and denied in part the defendants’ motion to

dismiss. Specifically, the District Court dismissed Pressley’s retaliation and deprivation

of property claims against Huber as barred by the statute of limitations and dismissed his

claims as to all defendants except Huber for lack of personal involvement. Following

1
  The Pennsylvania Department of Corrections permits inmate to store a maximum of
five boxes of active or open legal materials after receiving permission from the
institution’s superintendent.
                                               2
discovery, Huber and Pressley filed cross motions for summary judgment. The District

Court granted Huber’s motion after determining that Pressley had failed to exhaust

administrative remedies for his access to the courts claim. This appeal followed.

                                             II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291 and exercise plenary review

over both the District Court’s dismissal order and the order granting summary judgment.

See Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009); Allah v. Seiverling, 229 F.3d

220, 223 (3d Cir. 2000). To survive dismissal pursuant to Fed. R. Civ. P. 12(b)(6), “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)). Summary judgment is

appropriate only when the record “shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). “The moving party has the burden of demonstrating that there is no genuine issue

as to any material fact, and summary judgment is to be entered if the evidence is such that

a reasonable fact finder could find only for the moving party.” Watson v. Eastman

Kodak Co., 235 F.3d 851, 854 (3d Cir. 2000) (citing Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986)).

                                             III.

A.     Defendants’ Motion to Dismiss

       The District Court granted the defendants’ motion to dismiss as to defendants

Marsh, Taggart, Kelchner, and Beard after determining that Pressley had failed to allege

                                              3
personal involvement by those defendants. It is well settled that liability under § 1983

cannot be premised on the theory of respondeat superior; instead, each individual

defendant “‘must have personal involvement in the alleged wrongdoing.’” Evancho v.

Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195,

1207 (3d Cir. 1988)). However, a supervisor may be held individually liable if his failure

to properly train a subordinate employee caused a deprivation of the plaintiff’s

constitutional rights. See Green v. Branson, 108 F.3d 1296, 1302 (10th Cir. 1997);

Andrews v. Fowler, 98 F.3d 1069, 1078 (8th Cir. 1996). To establish liability, a plaintiff

must demonstrate that the defendant’s failure to train amounted to “deliberate

indifference” and that such failure to train was closely related to the plaintiff’s injury.

City of Canton v. Harris, 489 U.S. 378, 389, 391 (1989). Here, however, Pressley

provided no allegations in his complaint which implicate the type of deliberate

indifference required for § 1983 liability.

       We further agree with the District Court’s dismissal of Pressley’s claim that Huber

denied him due process by depriving him of his property.2 Intentional and negligent

deprivations of property do not violate due process if meaningful post-deprivation

remedies for the loss are available. Daniels v. Williams, 474 U.S. 327, 328 (1986);

Hudson v. Palmer, 468 U.S. 517, 533 (1984). Pressley had adequate remedies in both




2
 Although the District Court dismissed this claim after determining that it was time-
barred, we may affirm on any basis supported by the record. See Brown v. Pa. Dep’t of
Health Emergency Med. Servs., 318 F.3d 473, 475 n.1 (3d Cir. 2003).
                                               4
state tort law and the prison grievance process.3 See 42 Pa. Cons. Stat Ann. § 8522(a),

(b)(3) (common law action for conversion); Tillman v. Lebanon Cnty. Corr. Facility,

221F.3d 410, 422 (3d Cir. 2000). Accordingly, he failed to state a claim upon which

relief could be granted.

       The District Court also granted the defendants’ motion to dismiss as to Pressley’s

retaliation claim against defendant Huber, noting that it was barred by the applicable two-

year limitations period found in 42 Pa. Cons. Stat. § 5524(2). See Knoll v. Springfield

Twp. Sch. Dist., 763 F.2d 584, 585 (3d Cir. 1985). Though this Court has not spoken on

the issue, several courts of appeals have held that, because exhaustion of prison

administrative remedies is mandatory under the Prison Litigation Reform Act (“PLRA”),

the statute of limitations applicable to § 1983 actions should be tolled while a prisoner

exhausts. See Gonzalez v. Hasty, 651 F.3d 318, 323-24 (2d Cir. 2011); Brown v. Valoff,

422 F.3d 926, 942-43 (9th Cir. 2005); Clifford v. Gibbs, 298 F.3d 328, 332 (5th Cir.

2002); Johnson v. Rivera, 272 F.3d 519, 522 (7th Cir. 2001); Brown v. Morgan, 209 F.3d

595, 596 (6th Cir. 2000).

       We will therefore examine whether the statute of limitations bars Pressley’s

retaliation claim.   Under federal law, a § 1983 claim accrues “when the plaintiff has a

complete and present cause of action.” Wallace v. Kato, 549 U.S. 384, 388 (2007)

(internal quotation omitted). In his complaint, Pressley alleges that he completed the


3
 To the extent Pressley was provided with pre-deprivation notice of the confiscation and
destruction of his files, such notice would appear to provide an adequate safeguard. See
Zinermon v. Burch, 494 U.S. 113, 132-33 (1990). In any event, as discussed infra,
Pressley can show, at most, that Huber’s conduct was negligent.
                                             5
grievance process for all his claims, but he does not state when this process was

completed. The defendants argue that Pressley did not complete the grievance process

because he failed to submit required documentation at the final stage of the process. In

response, Pressley asserts that he was unable to submit supporting documents because the

documentation that he was required to submit with his final appeal was seized from his

cell by prison officials. Administrative remedies can be rendered unavailable when

“prison officials prevent a prisoner from ‘utiliz[ing]’” them. Miller v. Norris, 247 F.3d

736, 740 (8th Cir. 2001).

       The record contains a grievance from March 23, 2005 that focuses on the

destruction of his files. It contains no assertion that the destruction was retaliatory. Even

if we construed this grievance to also raise a retaliation claim, his claim would be time-

barred. As the District Court observed, the Complaint was filed on March 10, 2008 and

therefore the statute of limitations covered activity back to March 10, 2006. District

Court Op. at 5. Pressley received a final disposition of his March 23, 2005 grievance on

May 20, 2005. See Exhibits 24, 25 attached to Plaintiff’s opposition to summary

judgment. If the grievance and appeal periods operate to toll any statute of limitation, the

tolled statute of limitations period would have expired no later than May 20, 2007. His

March 2008 Complaint, therefore, was untimely. 4


4
  The record also discloses a second grievance filed on August 25, 2005, in which
Pressley mentions in the fact section of his brief but does not rely upon in his discussion
about exhaustion. The absence of any reference to August 25, 2005 grievance in his
exhaustion discussion reflects a concession that it was not fully exhausted and thus, any
claim based upon it was properly dismissed.

                                              6
B.     Defendant Huber’s Motion for Summary Judgment

       The District Court properly granted summary judgment for Huber as to Pressley’s

access to the courts claim.5 Prisoners have a right of access to the courts. See Lewis v.

Casey, 518 U.S. 343, 350 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977). However,

the Due Process Clause does not afford prisoners a remedy for negligent governmental

acts. See Daniels v. Williams, 474 U.S. 327, 335-36 (1986). No constitutional violation

occurs when a prisoner’s access to the courts is impeded by mere negligence. Simkins v.

Bruce, 406 F.3d 1239, 1242 (10th Cir. 2005); Snyder v. Nolen, 380 F.3d 279, 291 n.11

(7th Cir. 2004); Pink v. Lester, 52 F.3d 73, 76 (4th Cir. 1995); see also Gibson v.

Superintendent of N.J. Dep’t Law & Pub. Safety Div., 411 F.3d 427, 445 (3d Cir. 2005),

overruled on other grounds by Dique v. N.J. State Police, 603 F.3d 181 (3d Cir. 2010)

(determining that there was no denial of access to the courts where plaintiff could not

establish that officials had acted “wrongfully and intentionally”).

       The record reflects that Pressley did not provide any evidence to demonstrate that

Huber intentionally or deliberately destroyed his litigation files related to Pressley v.

Horn. Instead, the record establishes that Huber received a list of Pressley’s open and

closed actions and relied on the list to confiscate documents and materials relating to

those actions marked as closed. Huber provided Pressley with confiscation slips for these

items. While these confiscation slips did not describe these items in great detail, one slip

indicates that materials for case number 04-2150 were confiscated. As noted above, 04-

5
 Again, although the District Court granted summary judgment after determining that
Pressley had failed to exhaust his administrative remedies, we may affirm on any basis
supported by the record. See Brown, 318 F.3d at 475 n.1.
                                              7
2150 was the appellate case number assigned to Pressley’s appeal in Pressley v. Horn. In

April 2005, Pressley received notice that he had an opportunity to either destroy or ship

the items that had been confiscated; however, he refused to sign this notice. In May

2005, the items confiscated, including Pressley’s files for Pressley v. Horn, were

destroyed. At no time before then did Pressley or another individual inform Huber that

Pressley v. Horn was an active appeal. As Pressley can show, at most, that Huber’s

conduct was negligent, the District Court properly granted summary judgment.

                                            IV.

       For the foregoing reasons, we will affirm the orders of the District Court granting

the motions to dismiss and for summary judgment.




                                             8
