DLD-180
                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 12-1396
                                     ____________

                                WAYNE PETTAWAY,
                                             Appellant

                                            v.

                                 SCI ALBION;
                   DEPARTMENT OF CORRECTION CAMP HILL
                      __________________________________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                            (D.C. Civ. No. 1-11-cv-00158)
                       Magistrate Judge: Susan Paradise Baxter
                      __________________________________

        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
                                   May 10, 2012

            Before: AMBRO, JORDAN AND VANASKIE, Circuit Judges

                             (Opinion filed: May 22, 2012)
                                    ____________

                                       OPINION
                                     ____________


PER CURIAM

      Appellant Wayne Pettaway, an inmate at the State Correctional Institution at

Albion, Pennsylvania (“SCI-Albion”), initiated a civil rights action against SCI-Albion
and the state Department of Corrections (“DOC”) in the United States District Court for

the Western District of Pennsylvania by filing a motion for injunctive relief. His

complaint was filed thereafter, and in it Pettaway alleged that the DOC improperly

deducted court costs and fees from his prison account, pursuant to Act 84, over a period

of years despite the fact that his “commitment order” provided that his fine and court

costs were to be paid by Allegheny County. Pettaway sought money damages.

       Pettaway later filed a “supplemental” complaint, in which he provided certain

details about his attempt to grieve the “theft” of his funds through prison channels. He

provided a portion of the transcript from sentencing, wherein the trial judge stated: “And

I will put costs on the county,” and another item indicating that those costs totaled

$605.19 for two different convictions. Still another item, a “Memo” dated February 11,

2011 from the DOC, indicated that that the collection of costs from Pettaway’s prison

account had been terminated, and that any funds in the DOC’s possession that had not

already been remitted to Allegheny County ($6.29) had been returned to Pettaway’s

account. As to money already remitted, Pettaway was invited by the Superintendent to

contact Allegheny County for the return of his funds.

       The defendants moved to dismiss the complaint pursuant to Fed. R. Civ. Pro.

12(b)(6), and Pettaway submitted a written response in opposition. In an order entered on

February 2, 2012, the Magistrate Judge granted the defendants’ motion and dismissed the

complaint. 1 The Magistrate Judge determined that Pettaway’s claim was barred by the


1
 The parties consented to jurisdiction by a United States Magistrate Judge, see 28 U.S.C.
§ 636(c)(1).
                                             2
Eleventh Amendment, which proscribes actions in the federal courts against a State and

its agencies. The DOC, which administers SCI-Albion, is an agency of the

Commonwealth of Pennsylvania and thus enjoys the same Eleventh Amendment

immunity that the Commonwealth enjoys. Moreover, the DOC is not a “person” against

whom a civil rights action may be brought. The Magistrate Judge further determined that

any amendment by Pettaway to name specific persons responsible for the wrongful

deductions would be futile, because the availability of the grievance procedure at SCI-

Albion satisfied all the requirements of due process. Pettaway in fact used the post-

deprivation remedy provided by the prison to obtain the return of at least some of his

money.

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

granted him leave to appeal in forma pauperis and advised him that the appeal was

subject to summary dismissal under 28 U.S.C. § 1915(e)(2)(B) or summary affirmance

under Third Cir. LAR 27.4 and I.O.P. 10.6. He was invited to submit argument in

writing.

       We will dismiss the appeal as frivolous. An appellant may prosecute his appeal

without prepayment of the fees, 28 U.S.C. § 1915(a)(1), but the in forma pauperis statute

provides that the Court shall dismiss the appeal at any time if the Court determines that it

is frivolous, 28 U.S.C. § 1915(e)(2)(B)(i). An appeal is frivolous when it lacks an

arguable basis either in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).

Pettaway’s appeal lacks an arguable basis in the law. A motion to dismiss should be

granted if the plaintiff is unable to plead “enough facts to state a claim to relief that is

                                               3
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, 129 S. Ct. 1937, 1949 (2009). We look for “enough facts

to raise a reasonable expectation that discovery will reveal evidence of the necessary

elements of” a claim for relief. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d

Cir. 2008) (quoting Twombly, 550 U.S. at 556). Where that is missing, the complaint

must be dismissed.

       The Magistrate Judge properly dismissed Pettaway’s complaint. Suit against the

Commonwealth’s Department of Corrections and SCI-Albion is barred by the Eleventh

Amendment because Pennsylvania has not consented to suit in federal court. See

Lombardo v. Pennsylvania, 540 F.3d 190, 194 (3d Cir. 2008) (immunity of States from

suits in federal courts is fundamental aspect of state sovereignty). The Pennsylvania

Department of Corrections is a state agency. See 71 Pa. Adm. Code § 61. Congress may

abrogate a State’s sovereign immunity, and a State may consent to suit, Lombardo, 540

F.3d at 195-96, but Congress has not abrogated the States’ immunity from section 1983

actions, Quern v. Jordan, 440 U.S. 332, 345 (1979), and Pennsylvania has withheld its

consent to suit in federal court, 42 Pa. Cons. Stat. § 8521(b). See Laskaris v.

Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981).

       Moreover, as a state agency and the prison it administers, the Department of

Corrections and SCI-Albion are not “persons” and thus cannot be sued under 42 U.S.C. §

1983. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). Any amendment

to Pettaway’s complaint to name persons who could be sued under section 1983 would be

                                             4
futile, see Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).

Procedural due process guarantees that the State 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, Parratt, 451 U.S. at

530, and intentional deprivations of property, Hudson v. Palmer, 468 U.S. 517, 533

(1984). The Pennsylvania Department of Corrections 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 his due process claim.

       For the foregoing reasons, we will dismiss the appeal as frivolous pursuant to 28

U.S.C. § 1915(e)(2)(B)(i).




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