CLD-237                                                      NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 14-1138
                                     ___________

                                   CRAIG KINARD,
                                             Appellant

                                           v.

  SECURITY LIEUTENANT BAKOS; THOMPSON, CORRECTIONAL OFFICER
                ____________________________________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                            (D.C. Civil No. 3-13-cv-00260)
                      District Judge: Honorable Kim R. Gibson
                     ____________________________________

        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
                                   April 24, 2014

             Before: FUENTES, JORDAN and SHWARTZ, Circuit Judges

                              (Opinion filed: May 5, 2014)
                                      _________

                                      OPINION
                                      _________

PER CURIAM

      Craig Kinard, proceeding pro se and in forma pauperis, appeals from the District

Court’s orders dismissing his complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and
denying his motion to alter or amend the judgment. For the reasons set forth below, we

will summarily affirm.1

                                             I.

       Craig Kinard, a Pennsylvania prisoner, filed an amended complaint pursuant to 42

U.S.C. § 1983 alleging that on March 19, 2013, two correctional officers (the named

defendants) engaged in a contraband search of his cell. Kinard was handcuffed and stood

outside the cell during the search. He observed Defendant Thompson open an envelope

labeled “legal mail confidential” and read the enclosed materials. Defendant Thompson

then summoned Defendant Bakos, who allegedly also read the materials in the envelope

designated as legal mail. These materials allegedly pertained to a separate § 1983 suit in

which Defendant Bakos was also named as a defendant. After he had read the legal

materials, Defendant Bakos allegedly said to another correctional officer, “That Kinard

knows about the camera footage, it’s all in his proof and evidence pages.” Kinard alleged

that these events violated his right under the Fourth Amendment of the United States

Constitution to be free from unreasonable searches. The Magistrate Judge recommended

that Kinard’s complaint be dismissed with prejudice, and the District Court adopted the

Magistrate Judge’s report and recommendation. Kinard then moved under Federal Rule



1
  We have jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1291. We may
summarily affirm a decision of the District Court if the appeal does not raise a substantial
issue. 3d Cir. LAR 27.4; I.O.P. 10.6. We may affirm on any basis supported by the
record. Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).
                                             2
of Civil Procedure 59(e) to alter or amend the judgment. The District Court denied the

motion, and Kinard timely appealed.

                                           II.

       We exercise plenary review over the District Court’s dismissal order. See Allah v.

Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). Because Kinard’s timely appeal from the

denial of his motion for reconsideration “brings up the underlying judgment for review,”

McAlister v. Sentry Ins. Co., 958 F.2d 550, 552–53 (3d Cir. 1992), we will review the

District Court’s dismissal of Kinard’s complaint, as well as its denial of his motion for

reconsideration. We review the denial of a motion for reconsideration for abuse of

discretion. Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010) (per curiam).

       The legal standard for dismissing a complaint for failure to state a claim pursuant

to § 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Federal

Rule of Civil Procedure 12(b)(6). See Allah, 229 F.3d at 223. Dismissal is appropriate

where the pleader has not alleged “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)

(internal quotations omitted). The standard requires a two-part analysis. First, we

separate the complaint’s factual allegations from its legal conclusions. Having done that,

we take only the factual allegations as true and determine whether the plaintiff has

alleged a plausible claim for relief. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210-

11 (3d Cir. 2009).

                                                 3
       Upon review, we conclude that the District Court properly determined that Kinard

failed to state a Fourth Amendment claim. The Supreme Court of the United States has

stated unequivocally that “the Fourth Amendment proscription against unreasonable

searches does not apply within the confines of the prison cell. The recognition of privacy

rights for prisoners in their individual cells simply cannot be reconciled with the concept

of incarceration and the needs and objectives of penal institutions.” Hudson v. Palmer,

468 U.S. 517, 526 (1984). The search that gave rise to Kinard’s lawsuit was therefore not

protected by the Fourth Amendment.

       In addition to failing to constitute a viable Fourth Amendment claim, the facts

alleged his complaint cannot support any other cause of action. We agree with the

Magistrate Judge that a search could be so intrusive as to violate an inmate’s Eighth

Amendment right to be free from cruel and unusual punishment, or that an ongoing

practice of opening and reading inmates’ legal mail could present a First Amendment

issue. See id. at 530 (stating that the Eighth Amendment prevents prison attendants from

“rid[ing] roughshod over inmates’ property rights with impunity.”); Jones v. Brown, 461

F.3d 353, 355 (3d Cir. 2006) (holding that state prisoners have an interest protected by

the First Amendment in being present when their incoming legal mail is opened).

Neither of those situations is present in the instant case. Nor can Kinard show that his

access to the courts has been hampered, because a viable claim of that type requires an

inmate to demonstrate that he was actually injured. See Lewis v. Casey, 518 U.S. 343,

                                             4
349 (1996). The rule that an actual injury must be shown applies when a claim regarding

access to the courts is grounded on a prison’s alleged interference with legal mail. See

Oliver v. Fauver, 118 F.3d 175, 178 (3d Cir. 1997). A plaintiff can demonstrate actual

injury by alleging that the defendants’ actions resulted in the “loss or rejection of a legal

claim.” Id. at 177. As Kinard has not pleaded facts that would give rise to any of the

aforementioned claims, the dismissal of his complaint for failure to state a claim was

proper.

          Finally, we agree with the District Court’s denial of Kinard’s motion for

reconsideration pursuant to Federal Rule of Civil Procedure 59(e), which we review for

abuse of discretion. A motion for reconsideration “must rely on one of three grounds: (1)

an intervening change in controlling law; (2) the availability of new evidence; or (3) the

need to correct clear error of law or prevent manifest injustice.” Lazaridis, 591 F.3d at

669. Kinard did not identify any of these factors; instead, he merely reiterated his

previous argument. Accordingly, we discern no abuse of discretion in the District

Court’s denial of Kinard’s motion.

                                              III.

          There being no substantial question presented on appeal, we will summarily

affirm.




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