BLD-018 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 10-2984
WILLIE STOKES,
Appellant
v.
C.O.I GEHR; C.O.I. HIKES; DEPUTY COLLINS;
LT. YEAHEL; CAPTAIN GAVIN; JOHN KERESTES, Supt.;
JEFFREY BEARD
On Appea1 from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 3-09-cv-01740)
District Judge: Honorable Richard P. Conaboy
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § l9l5(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. l0.6
October 21, 2010
Before: SLOVITER, JORDAN and GREENAWAY, JR., Circuit Judges
(Opinion filed : November l, 2010 )
OPINION
PER CURIAM
Willie Stokes ("Stokes"), proceeding in forma pauperis, appeals from an order of
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the District Court for the Middle District of Pennsylvania We will affirm.
I.
Stokes is a prisoner in the custody of the Commonwcalth of Pennsy1vania, serving
a life sentence at SCI Mahanoy ("Mahanoy") for murder and possession of the instrument
of a crime. In a 28 U.S.C. § 1983 action filed against guards and supervisors affiliated
with Mahanoy (as well as the Secretary of the Pennsylvania Department of Corrections),
Stokes alleges the following. During March 2009, a "major search" of Mahanoy led to
the discovery and seizure of legal material belonging to Stokes in the cell of inmate
Steven Austin ("Austin").' Material confiscated by the guards included trial transcripts
that Stokes planned to use in preparing a habeas corpus petition under 28 U.S.C. § 2254.
When Austin’s own papers were eventually retcn'ned to him, the transcripts were not
among them. Stokes filed a grievance, and was told that since nothing was confiscated
from him personally, there was nothing to return; a response to Austin’s independent
inquiry indicated that since the transcripts were not Austin’s, they would not be returned
to him either.
Stokes asserts that this confiscation of his legal materials has hindered his access
to the courts. He maintains that he is innocent of the crime for which he is serving his
' The Pennsylvania Department of Corrections considers "property of another" to
be contraband. S£e Commonwcalth of Pennsylvania Department of Corrections,
DC-ADM 203: Searches of Imnates and Cells § IV-D (June l5, 2004), available at
http://www.portal.state.pa.us/portal/server.pt/document/91946l/203_searches_of_i
nmates_and_cells_pdf
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sentence, insisting that a 2005 affidavit by a Frank Lee, a witness who testified at his
trial, supports his claim of innocence when considered in tandem with the trial
transcripts. He states that his attempts to obtain a second copy of the trial transcript have
been for naught, as the case is "so old" that records are no longer available directly from
the trial coun. Therefore, Stokes seeks relief from the guards who confiscated the
material (for failing to identify and document the seized items), senior officers of
Mahanoy (for "failing to effectively manage the security office . . . with respect to the
matter [sic] in which confiscated items are identified and stored"), and managers (for
"deficient management") with regard to his lost legal claims, in the fonn of injunctive,
compensatory and pLmitive relief.
Stokes filed his original complaint in 2009. Defendants responded with a motion
to dismiss for failure to state a claim under Fed. R. Civ. P. l2(b)(6), charging that Stokes
had failed to properly plead an "actual injLu'y" sufficient to sustain an access-to-the-courts
claim. The Magistrate judge’s Report and Recommendation suggested dismissal. The
District Court agreed, but "rather than determining that amendment in this case would be
futile," allowed Stokes to amend his complaint out of an "abundance of caution."
Thereafter, Stokes filed a functionally identical amended complaint, to which defendants
responded with another motion under l2(b)(6). The Magistrate judge recommended
dismissal and the District Court dismissed. This appeal followed.
H.
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We have jurisdiction pursuant to 28 U.S.C. § l291. Our review of a District Court
order granting a motion to dismiss under Fed. R. Civ. P. l2(b)(6) is plenary, and we
accept all well-pleaded allegations contained in the complaint as true while drawing all
reasonable inferences in Stokes’ favor. Capogrosso v. Supreme Court of N.J .. 588 F.3d
l80, 184 (3d Cir. 2009). A complaint must contain a "a short and plain statement of the
claim showing that the pleader is entitled to relief" and "a demand for the relief sought."
Fed. R. Civ. P. 8(a). But the complaint must also contain sufficient factual matter to
"allow[] the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged," and it must be more than a formulaic recitation or a conclusory
statement of the defendant’s guilt. Ashcroft v. Igbal, _ U.S. __, 129 S. Ct. 1937, 1940
(2009); Sheridan v. NGK Metals CorL, 609 F.3d 239, 263 n.27 (3d Cir. 2010).
We may summarily affirm if the appeal does not present substantial questions.
§ LAR 27.4; I.O.P. l0.6; United States v. Baptiste, 223 F.3d 188, 190 n.3 (3d Cir.
2000). In taking summary action, we may affirm on any basis that finds support in the
record. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. l999).
III.
1n order for Stokes to prevail on his access-to-the-courts claim, he must
demonstrate an "actual injury, such as the loss or rejection of a legal claim." Oliver v.
1 118 F.3d l75, 177 (3d Cir. l997). This requirement, derived from principles of
standing, is an unwaivable constitutional prerequisite. § Lewis v. Casey, 518 U.S. 343,
351 (l996); Oliver, 118 F.3d at l77. Here, Stokes alleges a "forward-looking" injury:
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official action has impeded his ability to bring a valid, future suit. To state a claim for
this kind of injury, "the [impeded] cause of action . . . is an element that must be
described in the complaint, just as much as allegations must describe the official acts
frustrating the litigation." Christopher v. Harbugg, 536 U.S. 403, 415 (2002); §§§_ rail
 , 471 F.3d 1222, 1226 (l1th Cir. 2006) (“[A] litigant asserting an access
claim must also prove that he has a colorable underlying claim for which he seeks relief .
. . .") (emphasis added).
Stokes has failed to demonstrate that the underlying second or successive § 2254
petition described in his complaint would be viable under the exacting standard of 28
U.S.C. § 2244(b).2 He argues that the 2005 affidavit establishes his "actual innocence,"
but other than asserting that Mr. Lee "1ied" at his trial and that the "Commonwealth is in
fact incorrect" he does not explain how this evidence would bolster his claim to
irmocence-nor does he provide the text of this affidavit.3 This falls far short of the
2 A motion under § 2254 would be "second or successive" because Stokes’ first
such petition was dismissed as untimely in Stokes v. District Attomey of the Cnty_.
of Philadelphia, 247 F.3d 539, 543 (3d Cir. 2001). § McNabb v. Yates 576
F.3d 1028, 1030 (9th Cir. 2009) ("We therefore hold that dismissal of a section
2254 habeas petition for failure to comply with the statute of limitations renders
subsequent petitions second or successive for purposes of the AEDPA . . . .").
3 Indeed, we considered-and rejected-what appears from the complaint’s brief
description to be a similar argument in a prior Application from Stokes under 28
U.S.C. § 2244(b)(3)(A). In that Application, Stokes maintained that "if the
evidence contained in Mr. Lee’s Affidavit had been available and presented at
trial, a different verdict would have Likely [sic] resulted" and claimed that the
facts contained in that Affidavit could not have been discovered earlier, even with
due diligence. Application for Leave to File Second Petition for Writ of Habeas
Corpus at 8, In Re Willie Stokes (3d Cir. Oct. l3, 2009) (No. 09-3628). At the
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requirements of § 2244(b)(2). Stokes does not show that the information could not have
been discovered earlier through due diligence, and moreover does not argue that "but for
constitutional error, no reasonable factfinder would have found [him] guilty of the
underlying offense." He therefore fails to allege an underlying actual injury; thus, his
access-to-the-courts claim must fail.
IV.
Because this appeal presents no substantive legal issue, we will summarily affirm
the District Court’s judg1nent.
time, we concluded that Stokes had failed to meet the standards set forth in 28
U.S.C. § 2244(b)(2) for filing a second or successive habeas petition.
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