ALD-145                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 10-3590
                                       ___________

                                   NASEER SHAKUR,
                                    a/k/a Daniel Lewis
                                                       Appellant

                                             v.

     JACQUELYN COELHO, Assistant District Attorney, District Attorney Office;
    JOHN VERRECCHIO, Detective, Phila. Police Dept.; STEVEN MOSTOOVYK,
                      Detective, Phila Police Dept.
                ____________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                              (D.C. Civil No. 09-cv-04154)
                       District Judge: Honorable Stewart Dalzell
                      ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    March 24, 2011
           Before: SCIRICA, HARDIMAN, and VANASKIE, Circuit Judges

                              (Opinion filed: April 6, 2011)
                                      _________

                                        OPINION
                                        _________

PER CURIAM

       Appellant Naseer Shakur, an inmate at the State Correctional Institute at

Huntington, appeals from an order of the District Court dismissing this pro se civil rights
action for failure to state a claim. For the following reasons, we will summarily affirm.

       Shakur’s complaint arises out of events that occurred before his criminal

conviction, while he was a pretrial detainee at the Prison Industrial Correctional Center in

Philadelphia. He alleges that in September 2007, officers entered his cell and confiscated

legal materials, books, and personal property. The officers refused his request to file a

grievance and did not provide information about how he could get his property back.

Shakur claims to have later learned that the officers were acting at the behest of

defendants Verrechio and Mostovyk, both detectives with the Philadelphia Police

Department. Verrechio and Mostovyk turned the property over to defendant Coelho, the

Assistant District Attorney prosecuting Shakur’s case. Shakur alleges that the

confiscation was authorized by a judicial order, and that Coelho refused to return the

property, even after being ordered to do so by a judge.

       Shakur claims that the seizure of his property inhibited his ability to pursue a

number of goals. First, he claims that the seizure interfered with a Freedom of

Information Act request that he had filed seeking “information on the criminal bonds” for

his case. He also alleges that a letter from the prosecution’s star witness was among the

material seized. According to Shakur, this letter would have demonstrated that the

witness’s testimony was perjured. In addition, he claims that the seized material included

discovery provided by his attorney and transcripts, without which Shakur was unable to

assist in his defense. Finally, he claims that the officers seized original literary works,

which he was then unable to copyright. Shakur’s complaint alleges violations of due
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process and access to the courts, as well as violations of the Fourth, Eighth, and

Fourteenth Amendments.

       The District Court dismissed the complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(b)

and 1915A(b), concluding that Shakur had failed to state a claim upon which relief could

be granted. It did not grant Shakur leave to amend or find that amendment would be

futile. Shakur filed a timely notice of appeal. However, because he had failed to pay the

filing fee or submit an application to proceed in forma pauperis (IFP), the appeal was

dismissed for failure to prosecute. See Fed. R. App. P. 3(a)(2); LAR 3.3(a). Shakur filed

motions to reopen the appeal and to proceed in forma pauperis. Although he filed the

motion to reopen beyond the ten-day time period set forth in 3d Cir. LAR 107.2(a), we

find that he had good cause for failing to timely submit his application to proceed IFP and

therefore grant his motion to reopen. See id. Because the IFP application demonstrates

that Shakur is indigent, we will grant his motion to proceed IFP.

       We have jurisdiction to hear this appeal. 28 U.S.C. § 1291. We review the

District Court’s § 1915(e) dismissal without leave to amend for abuse of discretion.

Denton v. Hernandez, 504 U.S. 25, 33 (1992). To the extent that the District Court

engaged in the choice, application, and interpretation of the law, our review is plenary.

Deutsch v. United States, 67 F.3d 1080, 1083 (3d Cir. 1995). Summary action is

warranted if an appeal presents no substantial question. LAR 27.4; I.O.P. 10.6. We

conclude that the District Court did not err in dismissing Shakur’s complaint without

granting leave to amend.
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       Shakur alleges that he was deprived of his property without due process of law.

“[A]n unauthorized intentional deprivation of property by a state employee does not

constitute a violation of the procedural requirements of the Due Process Clause [. . .] if a

meaningful postdeprivation remedy for the loss is available.” Hudson v. Palmer, 468

U.S. 517, 533 (1984). Pennsylvania provides a remedy for intentional wrongs committed

by state officials through the Pennsylvania Tort Claims Act, 42 Pa. C.S. §§ 8541-8546.

Although state officials are generally immune from liability for acts committed within the

scope of their duties, this immunity does not apply when, as is the case here, the alleged

misconduct was willful. See 42 Pa. C.S. § 8550. Thus, Shakur had a remedy under state

law.

       Shakur admits that he did not first file a state claim, but argues that Hudson does

not apply because, in his case, the defendants were in a position to provide a

predeprivation remedy before his property was seized. However, “[w]hether an

individual employee himself is able to foresee a deprivation is simply of no consequence.

The controlling inquiry is solely whether the state is in a position to provide for

predeprivation process.” Hudson, 468 U.S. at 534. Thus, Hudson forecloses Shakur’s

argument.

       Shakur also claims that Coelho refused to return his property, even after being

instructed by a judge to do so. For this allegation, too, Shakur can file a claim under the

Pennsylvania Tort Claims Act. In addition, Pennsylvania Rule of Criminal Procedure

588 allows for defendants “to move for the return of property on the ground that he or she
                                              4
is entitled to lawful possession thereof.” Thus, we conclude that the District Court did

not abuse its discretion in dismissing Shakur’s due process claims without granting leave

to amend.

       Shakur’s remaining claims require little discussion. He argues that he was

deprived of access to the courts because the seizure prevented him from pursuing a “civil

action/criminal counterclaim which was to act as a criminal claim against the detectives

named as defendants in this complaint.” However, Shakur cannot bring criminal claims.

To the extent that he argues that the seizure impeded his ability to defend his criminal

case, we agree with the District Court that his remedy, if any, lies in a habeas petition, not

a civil rights action. Shakur alleges a Fourth Amendment violation, but “the Fourth

Amendment proscription against unreasonable searches does not apply within the

confines of the prison cell.” Hudson, 468 U.S. at 526. Finally, he alleges no facts to

suggest that he was subjected to cruel and unusual punishment in violation of the Eighth

Amendment.

       Accordingly, we conclude that this appeal presents no substantial question, and we

will affirm the District Court’s decision.




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