                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 15-2431
                                    ____________

                                 ORLANDO EDNEY,
                                             Appellant

                                           v.

                    C. HALIBURTON, MAIL ROOM OFFICER;
                JOHN DELANEY, WARDEN DETENTION CENTER;
                   LOUIS GIORLA, COMMISSIONER OF PP’S;
                 MICHAEL NUTTER, MAYOR OF PHILADELPHIA
                      __________________________________

                   On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                             (D.C. Civ. No. 2-14-cv-01095)
                   District Judge: Honorable Thomas N. O’Neill, Jr.
                      __________________________________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 August 1, 2016
              Before: FISHER, SHWARTZ and COWEN, Circuit Judges

                            (Opinion filed: August 2, 2016)
                                   ____________

                                     OPINION*
                                    ____________


PER CURIAM

      Appellant Orlando Edney appeals from an order of the District Court dismissing

his amended complaint. For the reasons that follow, we will affirm.
        Edney, a pretrial detainee facing charges in the Philadelphia County Court of

Common Pleas, filed an in forma pauperis civil rights action in the United States District

Court for the Eastern District of Pennsylvania against former City of Philadelphia Mayor

Michael Nutter, Prison Commissioner Louis Giorla, Warden John Delaney, and mail

room Officer C. Haliburton. Edney alleged that his constitutional rights were violated

when Haliburton tampered with his regular mail by removing and destroying a photocopy

of his codefendant Benjamin Collier’s identification card (“ID card”), which Collier had

attached to his notarized statement. Although the ID card was confiscated, the statement

itself, which was apparently offered to exonerate Edney, was properly delivered by prison

authorities to Edney. 1 Collier alleged in his complaint that the removal and destruction of

the ID card photocopy will do irreparable damage to his defense of innocence. In an

order entered on December 19, 2014, the District Court dismissed the amended

complaint, concluding that it did not state an actionable constitutional violation as

required by 42 U.S.C. § 1983.

        Edney appeals. We have jurisdiction under 28 U.S.C. § 1291. Our Clerk granted

him leave to proceed in forma pauperis and advised him that the appeal could be

summarily dismissed under 28 U.S.C. § 1915(e)(2) or that the Court could summarily

affirm under Third Circuit L.A.R. 27.4 and I.O.P. 10.6. After Edney submitted argument

in support of his appeal, the Clerk concluded that the appeal should proceed to briefing

and directed the parties to specifically address whether Edney had stated a claim of denial

1
 In this affidavit, Collier stated that: “Orlando Edney had no knowledge that 7418 Medrick Place was not my place
of residence and that I Benjamin Collier open[ed] the door for his entry to utilize the bathroom, which he was
doing at the time officers arrived.”

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of access to the courts, pursuant to the First and Fourteenth Amendments and Lewis v.

Casey, 518 U.S. 343, 350 (1996). In his Informal Brief, Edney argues that dismissal of

his complaint was in error because Officer C. Haliburton tampered with and confiscated a

“Legal Binding Document,” that the document -- an ID card photocopy -- did not present

a security risk, and that he has suffered emotional distress as a result of the confiscation.

In pertinent part, the appellees in their brief concede that nominal damages are available

for First Amendment violations, but note that Edney has not yet been tried and thus has

suffered no actual harm.

         We will affirm. We exercise plenary review over a Rule 12(b)(6) dismissal. See

Weston v. Pennsylvania, 251 F.3d 420, 425 (3d Cir. 2001). We “are free” to affirm the

judgment “on any basis which finds support in the record.” Bernitsky v. United States,

620 F.2d 948, 950 (3d Cir. 1980). Dismissal under Rule 12(b)(6) is proper where the

plaintiff is unable to plead “enough facts to state a claim to relief that is plausible on its

face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility

standard “asks for more than a sheer possibility that a defendant has acted unlawfully.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Conclusory allegations are insufficient to

survive a motion to dismiss. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.

2009).

         Prisoners have a right of access to the courts, Lewis, 518 U.S. 343; Bounds v.

Smith, 430 U.S. 817 (1977). This right prohibits active interference with a prisoner’s

preparation or filing of legal documents and ensures a reasonably adequate opportunity to

present violations of fundamental constitutional rights. Lewis, 518 U.S. at 350-51. The

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right to present a defense of innocence is one of those rights, but a violation is only

established where the prisoner shows that he was actually injured, that is, where he shows

that he was actually hindered in his efforts to pursue a legal claim, id. at 351. An actual

injury is shown only where an arguable claim is lost, Christopher v. Harbury, 536 U.S.

403, 415 (2002). If Edney has not yet been tried and convicted, his claim of innocence

has not yet been lost. “The ripeness doctrine determines ‘whether a party has brought an

action prematurely, and counsels abstention until such time as a dispute is sufficiently

concrete to satisfy the constitutional and prudential requirements of the doctrine.’”

Pittsburgh Mack Sales & Service, Inc. v. International Union of Operating Engineers, 580

F.3d 185, 190 (3d Cir. 2009) (quoting Peachlum v. City of York, 333 F.3d 429, 433 (3d

Cir. 2003)). A claim is not ripe for adjudication if it rests on some contingent future

event, as does Edney’s claim. Texas v. United States, 523 U.S. 296, 300 (1998). In that

he has not yet been tried and convicted, Edney’s access to the courts claim involving a

defense of innocence cannot survive a Rule 12 motion to dismiss. 2

       To the extent that Edney merely alleged that he suffered emotional harm from the

defendants’ destruction of his copy of Collier’s photo ID card, which he cannot replace

because Collier is deceased, the Prison Litigation Reform Act prohibits recovery of

damages for mental and emotional injuries absent a showing of physical injury. 42

U.S.C. § 1997e(e); Mitchell v. Horn, 318 F.3d 523, 535-36 (3d Cir. 2003) (requiring

more than de minimis physical injury as predicate to allegation of emotional injury). In

2
 In any event, as the appellees have pointed out, the loss of the ID card should not affect
Edney’s defense because a notarized document is self-authenticating, Pa. R. Evid. 902(8).
Collier’s statement was notarized and thus the ID card is unnecessary.
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addition, a prisoner’s right to receive and send mail can be restricted for legitimate

penological reasons. See Thornburgh v. Abbott, 490 U.S. 401, 407 (1989); Turner v.

Safley, 481 U.S. 78, 89 (1987). An isolated incident of mail tampering is generally

insufficient to state a First Amendment violation, see, e.g., Davis v. Goord, 320 F.3d 346,

351 (2d Cir. 2003) (“[A]n isolated incident of mail tampering is usually insufficient to

establish a constitutional violation.”). Moreover, Edney’s assertion that his possession of

someone else’s photo ID does not pose a security risk is implausible and thus insufficient

to survive a motion to dismiss, see Twombly, 550 U.S. at 570.

       For the foregoing reasons, we will affirm the order of the District Court dismissing

Edney’s amended complaint.




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