ALD-043                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 19-2586
                                      ___________

                                ALLEN PRESBURY, SR.,
                                             Appellant

                                             v.

                        JOHN E. WETZEL, PA. DOC SECT.;
                       M. ONDRAJKA, PA. DOC OFFICIAL;
                     T. FERGUSON, SCI PHOENIX WARDEN;
                    SGT. CURRAN, SCI/PHX PROPERTY STAFF
                     ____________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                         (D.C. Civil Action No. 19-cv-01791)
                      District Judge: Honorable Mark A. Kearney
                      ____________________________________

       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
                                 November 14, 2019
             Before: MCKEE, SHWARTZ, and PHIPPS, Circuit Judges

                             (Opinion filed: January 9, 2020)

                                        OPINION*
PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Pro se appellant Allen Presbury, Sr., appeals from the order dismissing his

complaint for failure to state a claim. Because this appeal does not present a substantial

question, we will summarily affirm. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.

       Presbury, who is imprisoned at State Correctional Institute Phoenix, brought a

civil rights action against several Pennsylvania Department of Corrections (“DOC”)

officials claiming that his rights to procedural due process and access to the courts were

violated when his legal property was lost during a transfer of all inmates from State

Correctional Institute Graterford to the recently constructed Phoenix. The District Court

permitted Presbury to proceed in forma pauperis but dismissed his complaint with leave

to amend the access to the courts claim. In his amended complaint, Presbury alleged that

the loss of his legal property amounted to a violation of his right to access the courts

because it frustrated his plan to submit his criminal case to the Philadelphia District

Attorney’s Conviction Review Unit.1 Despite the fact that the District Court did not

grant Presbury leave to amend his due process claim, Presbury nonetheless reiterated his

procedural due process challenge in his amended complaint. Ruling under 28 U.S.C.

§ 1915(e)(2)(B)(ii), the District Court considered both claims and dismissed Presbury’s

amended complaint for failure to state a claim.




1
  The Conviction Review Unit “investigates and reviews convicted offenders’ legitimate
claims of innocence.” Conviction Review Unit (CRU), Office of the District Attorney,
https://www.phila.gov/districtattorney/aboutus/Pages/CRU.aspx.
                                            2
       We have appellate jurisdiction pursuant to 28 U.S.C. § 1291, and we exercise

plenary review over the District Court’s order dismissing the complaint under

§ 1915(e)(2)(B)(ii). See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). In

reviewing a dismissal for failure to state a claim, “we accept all factual allegations as true

[and] construe the complaint in the light most favorable to the plaintiff.” Warren Gen.

Hosp. v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011) (quoting Pinker v. Roche Holdings,

Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)).

       We agree with the District Court that Presbury failed to state a claim that his right

to access the courts was violated. Prisoners have a right of access to the courts, and a

violation is established where a litigant shows that he was actually injured. See Lewis v.

Casey, 518 U.S. 343, 352–53 (1996). An access to the courts claim “is ancillary to the

underlying claim,” and, as such, a plaintiff “must identify a ‘nonfrivolous,’ ‘arguable’

underlying claim” that was lost. Christopher v. Harbury, 536 U.S. 403, 415 (2002)

(quoting Casey, 518 U.S. at 353 & n.3). To that end, the complaint must describe the

underlying claim well enough to show that it is “more than mere hope,” and it must

describe the “lost remedy.” See id. at 416–18 (stating that the underlying claim should be

pleaded in a manner that satisfies Federal Rule of Civil Procedure 8(a)).

       To the extent that Presbury’s plan to submit his case to the Conviction Review

Unit warrants constitutional protection, his complaint failed to describe a nonfrivolous or

arguable underlying claim that he lost the chance to pursue. Presbury did not allege any

facts about the merits of his underlying claim, let alone show that he stands more than a
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mere hope of successfully challenging his conviction. Nor did he demonstrate that the

loss of his legal materials, while unfortunate and inconvenient, has rendered him unable

to seek the District Attorney’s review.

       We also agree with the District Court that Presbury did not state a procedural due

process claim. Procedural due process guarantees that state actors will not deprive an

individual of a protected interest in property without due process of law, Parratt v.

Taylor, 451 U.S. 527, 537 (1981), overruled on other grounds, Daniels v. Williams, 474

U.S. 327 (1986), but the United States Supreme Court has held that meaningful post-

deprivation remedies provide sufficient due process for negligent deprivations of

property, id. at 530, and intentional deprivations of property, Hudson v. Palmer, 468 U.S.

517, 533 (1984).2 The DOC grievance procedure provides an adequate post-deprivation

remedy, see, e.g., Tillman v. Lebanon County Correctional Facility, 221 F.3d 410, 422

(3d Cir. 2000), and the existence of this post-deprivation remedy forecloses Presbury’s

due process claim. Even if the prison grievance procedure were constitutionally

inadequate, state tort law could serve as an adequate post-deprivation remedy. See 42 Pa.

Cons. Stat. Ann. § 8522(a), (b)(3).3



2
  While Presbury alleged that inmates’ property was lost on a large scale during the mass
transfer to Phoenix, he still described “random and unpredictable” state actions for which
post-deprivation remedies are sufficient. See Zinermon v. Burch, 494 U.S. 113, 132
(1990).
3
 While Presbury named the Eighth Amendment in his amended complaint, see Am.
Complaint 3, ECF No. 7, he did not plead any facts that would give rise to such a claim.
                                           4
       Finally, the District Court did not err in declining to grant Presbury leave to

further amend his complaint, as Presbury had already amended his complaint once and

further amendment would be futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108

(3d Cir. 2002). As this appeal presents no substantial question, we will affirm the District

Court’s order of dismissal. See 3d L.A.R. 27.4 and I.O.P. 10.6.




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