BLD-286                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 11-2693
                                       ___________

                                      ERIC LYONS,
                                               Appellant

                                             v.

   SECRETARY OF DEPARTMENT OF CORRECTIONS; DONALD KELCHNER;
          RICHARD SOUTHERS, ANDY HUBER; SHARON BURKS
                ____________________________________

                    On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                               (D.C. Civil No. 07-cv-02278)
                    District Judge: Honorable Christopher C. Conner
                      ____________________________________

        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
                                  September 8, 2011
        Before: SLOVITER, JORDAN and GREENAWAY, JR., Circuit Judges

                           (Opinion filed: September 27, 2011)
                                        _________

                                        OPINION
                                        _________

PER CURIAM

       Eric Lyons, a prisoner proceeding pro se, appeals from orders of the United States

District Court for the Middle District of Pennsylvania dismissing his civil rights action

brought pursuant to 42 U.S.C. § 1983. We will affirm the judgment of the District Court.
                                             I.

       On April 5, 2006, Lyons was transferred from SCI-Fayette to the Special

Management Unit (“SMU”) at SCI-Camp Hill. Shortly thereafter, the SMU Property

Officer, Adam Huber, conducted an inventory of Lyons’ property. Because Lyons’

property exceeded the amount that prison regulations permitted him to keep in his cell,

Officer Huber confiscated a portion of Lyons’ legal material.1 Lyons challenged the

confiscation of his property through the prison administrative grievance process. When

that process proved unsuccessful, Lyons filed a complaint in the District Court. Lyons

claimed that he was deprived of his property without due process, challenged the

Department of Corrections’ (“DOC”) policy that limits the amount of property inmates

may possess, and argued that his right of access to the courts was violated. He named as

defendants Officer Huber, as well as prison officials who had participated in the

grievance process.

       The defendants filed a motion to dismiss, arguing that Lyons did not suffer a due

process violation because he had adequate post-deprivation remedies and that he had

failed to exhaust any claim related to the prison’s policy of limiting SMU prisoners to

one box of personal property. The District Court agreed with those arguments, but held

that Lyons had set forth a viable access to the courts claim against Officer Huber. Officer

Huber filed a motion for summary judgment, asserting that Lyons had failed to


1
  Prior to the confiscation, Lyons was permitted to examine his legal materials, select
those materials that he wanted to keep in his cell, and place the remainder in storage
                                             2
demonstrate that the confiscation of his property resulted in the loss of an arguable legal

claim. After carefully examining Lyons’ criminal appeal proceedings, a Magistrate

Judge concluded that Lyons’ ability to litigate his claims had not been prejudiced by the

confiscation of his legal papers. Consequently, because Officer Huber had not violated

Lyons’ constitutional rights, the Magistrate Judge found that Officer Huber was entitled

to qualified immunity. Pearson v. Callahan, 555 U.S. 223, 232-33 (2009) (citing Saucier

v. Katz, 533 U.S. 194, 201 (2001)). Over Lyons’ objections, the District Court adopted

the Magistrate Judge’s Report and Recommendation and entered summary judgment in

favor of Officer Huber. Lyons appealed.

                                              II.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. “We review

district court decisions regarding both summary judgment and dismissal for failure to

state a claim under the same de novo standard of review.” Barefoot Architect, Inc. v.

Bunge, 632 F.3d 822, 826 (3d Cir. 2011). “To survive a motion to dismiss, a complaint

must contain sufficient factual matter, accepted as true, to state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal

quotations omitted). Summary judgment is proper where, viewing the evidence in the

light most favorable to the nonmoving party and drawing all inferences in favor of that

party, there is no genuine dispute as to any material fact and the moving party is entitled




boxes or have it sent outside the prison.
                                               3
to judgment as a matter of law. Fed. R. Civ. P. 56(a); Kaucher v. Cnty. of Bucks, 455

F.3d 418, 422-23 (3d Cir. 2006).

                                              III.

A.     Due Process

       The District Court properly granted the defendants’ motion to dismiss. In his

complaint, Lyons alleged that his legal materials were confiscated without due process.

Importantly, however, deprivation of inmate property by prison officials does not state a

cognizable due process claim if the prisoner has an adequate post-deprivation state

remedy. Hudson v. Palmer, 468 U.S. 517, 533 (1984). Here, adequate remedies were

available to Lyons, who sought relief through the prison’s administrative grievance

process. Tillman v. Lebanon County Corr., 221 F.3d 410, 422 (3d Cir. 2000) (holding

that prison’s grievance program and internal review provide an adequate post-

deprivation remedy to satisfy due process).

B.     Failure to Exhaust

       Notably, however, Lyons failed to use that process to challenge the DOC policy

that limits the amount of written material an inmate in the SMU may possess in his cell.

See Sutton v. Rasheed, 323 F.3d 236, 241-42 (3d Cir. 2003) (describing property

restrictions at the SCI-Camp Hill SMU). The Prison Litigation Reform Act of 1996 (the

“PLRA”) requires that a prisoner pursue all avenues of relief available within the prison’s

grievance system before bringing a federal civil rights action concerning prison

conditions. 42 U.S.C. § 1997e(a); Booth v. Churner, 532 U.S. 731, 741 (2001). This
                                               4
“exhaustion requirement applies to all inmate suits about prison life, whether they

involve general circumstances or particular episodes, and whether they allege excessive

force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). A prisoner’s

failure to substantially comply with the procedural requirements of the prison’s grievance

system will result in a procedural default of the issue and effectively bar the inmate from

bringing his claim in federal court. Spruill v. Gillis, 372 F.3d 218, 231-32 (3d Cir. 2004).

       Lyons conceded that he did not raise the property limitation issue in his

administrative grievance. He argued, though, that he should be excused from compliance

with the exhaustion requirement because he was not permitted to challenge prison

policies. In particular, Lyons claimed that inmates in the SMU may file grievances which

pertain only to the propriety of their confinement in administrative custody. As the

Magistrate Judge noted, however, while there are specific policies that govern challenges

to administrative custody and inmate discipline, see DC-ADM 801 & 802, the inmate

grievance review system is otherwise generally available to inmates in the SMU, see DC-

ADM 804. Therefore, because Lyons had an available remedy to challenge the property

limitation policy, but failed to utilize that that remedy, the District Court properly

dismissed his claim.

C.     Access to the Courts

       The District Court also properly granted Officer Huber’s motion for summary

judgment on Lyons’ access to the courts claim. Prisoners have a right of access to the

courts. See Lewis v. Casey, 518 U.S. 343 (1996). Importantly, however, where an
                                              5
inmate does not allege an actual injury to his ability to litigate a claim, his constitutional

right of access to the courts has not been violated. See id. at 352-53. An actual injury is

shown only where a nonfrivolous, arguable claim is lost. See Christopher v. Harbury,

536 U.S. 403, 415 (2002). In this case, Lyons argued that the confiscation of his legal

materials prevented him from pursuing a Brady claim in his state Post Conviction Relief

Act (“PCRA”) appeal and in his federal habeas petition. The Brady claim was premised

on the prosecution’s alleged failure to disclose police records pertaining to a purported

alibi witness, Joan Edenfield. As the Magistrate Judge’s thorough review of the

underlying state PCRA and federal habeas proceedings indicated, however, Lyons

capably raised his Brady claim, but lost because his arguments were without merit.

       Lyons’ legal materials were confiscated shortly after the PCRA court denied his

petition. Nevertheless, Lyons continued to pursue the Brady claim in his appeal to the

Pennsylvania Superior Court. The Superior Court denied the claim on its merits, holding

that because Lyons was aware of the potential alibi, the Commonwealth did not suppress

information unknown to him or that he could not have obtained himself with reasonable

diligence. Lyons reasserted the Brady claim in his federal habeas petition. The matter

was referred to a Magistrate Judge, who recommended denying the Brady claim on its

merits. Lyons v. Wilson, 2010 WL 2253751, at *16-19 (W.D. Pa. Feb. 10, 2010). In

particular, the Magistrate Judge concluded that “the Commonwealth was not obligated to

disclose the police notes from its interview with Edenfield” because Lyons, his mother,

and a pastor who was assisting in the defense investigation had contacted Edenfield at
                                               6
least four times. Id. at *19. In addition, the Magistrate Judge held that “there was

nothing that prevented [Lyons] from informing the Commonwealth well in advance of

trial that [Edenfield] would be an alibi witness.” Id. Finally, the Magistrate Judge found

that Edenfield’s testimony was not material to the defense, citing the “overwhelming

evidence” of Lyons’ guilt, Lyons’ inconsistent accounts of his whereabouts, and various

weaknesses in the evidence linking Edenfield to Lyons on the night of the crime. Id.

Importantly, there is no indication that Lyons’ Brady claim was rejected because his legal

materials were confiscated. Under these circumstances, we conclude that the District

Court properly granted summary judgment in favor of Officer Huber.

                                            IV.

       For the foregoing reasons, we conclude that no substantial question is presented by

this appeal. See I.O.P. 10.6. Accordingly, we will summarily affirm the District Court’s

judgment.




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