                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-1960
                                       ___________

                                   TROY COULSTON,
                                            Appellant

                                             v.

    SUPERINTENDENT HOUTZDALE SCI; KENNETH HOLLIBAUGH; SECRETARY
      PENNSYLVANIA DEPARTMENT OF CORRECTIONS; SEAN DOMANICK;
    ROBERT ROSENBAUM; DAVID CLOSE; DAVID KESSLING; SERGEANT JOHN
      SAWTELLE; ROBERT REED; ROBERT MACINTYRE; TRACY WILLIAMS;
                      DORINA VARNER; JOHN DOE
                  ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             (D.C. Civil No. 3:12-cv-00154)
                       District Judge: Honorable Kim R. Gibson
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     June 8, 2016
             Before: AMBRO, SHWARTZ and NYGAARD, Circuit Judges

                               (Opinion filed: June 9, 2016)
                                      ___________

                                        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.
       Troy Coulston appeals the District Court’s judgment in favor of Defendants. For

the reasons below, we will affirm.

                                        I. Background

       Troy Coulston is a state prisoner housed at SCI Houtzdale. He is serving a life

sentence for murder and aggravated robbery. Coulston was moved to the Restricted

Housing Unit (“RHU”) for an unrelated violation of prison rules. During the move, two

corrections officers found that Coulston had four records boxes. Because RHU prisoners

were limited to one records box, the officers told him they would seize and destroy all

four boxes, as they were considered “contraband” under DC-ADM 815.1 Although

Coulston objected that the boxes contained legal material that he needed to file seven

non-frivolous actions in Pennsylvania state courts, the officers seized all of the boxes and

issued him a confiscation slip. The officers also cited him with misconduct for

possessing contraband and disobeying a direct order.

       Coulston filed a prison grievance “in [an] effort to stop prison officials from

destroying [or] altering” his legal documents, which would interfere with his “preparation

to file a PCRA appeal petition.” His grievance was denied, and his appeals were

unsuccessful. So too were his challenges to his misconduct citations.

       Coulston then filed suit under 42 U.S.C. § 1983, claiming, inter alia, that

Defendants—the prison guards who confiscated his materials, the officials who ruled

against him in the disciplinary and grievance proceedings, and the Secretary of the

Department of Corrections—interfered with his access to courts by confiscating and

       1
           That provision prohibits generally the possession of “contraband.”
                                              2
destroying his legal materials. Specifically, Coulston alleged that in those materials was

a declaration sent to him by Desmond McDougald. McDougald declared that he had met

Coulston’s co-defendant, Mr. White, while both were prisoners at SCI Huntington.

McDougald also declared that Mr. White had confessed that he, and not Coulston, had

committed the homicide for which Coulston was convicted. Mr. White said that he had

removed his winter glove so that he could shoot the victim, and then he shut the victim’s

car door with his bare hand, accidentally leaving his fingerprint on the car door. Mr.

White stated that the state recovered his fingerprint from the victim’s car but never

disclosed that information to Coulston, and that the prosecution gave Mr. White a

favorable plea offer in exchange for his perjured trial testimony, which ensured

Coulston’s conviction. In addition to the declaration, Coulston claimed that McDougald

had sent him the Philadelphia Police forensic fingerprint report showing that Mr. White’s

fingerprint was recovered from the car in which the victim was found.

       Coulston’s complaint alleged that he had received McDougald’s declaration and

the fingerprint report approximately two weeks before Defendants seized his legal

material. He claimed that he was going to use those materials to file (1) a PCRA petition

challenging his homicide conviction; (2) a 42 U.S.C. § 1983 civil rights lawsuit against

the Philadelphia County district attorney who allegedly withheld the exculpatory

evidence; and (3) a federal habeas corpus petition challenging his robbery conviction on

grounds unrelated to the exculpatory evidence. He alleged that Defendants violated his

First Amendment right to free speech and unlawfully denied his access to courts by

destroying this evidence along with his other legal materials. Coulston further claimed

                                             3
that, in finding him guilty of prison misconducts, Defendant Reed violated Coulston’s

right to due process.2 In addition, Coulston claimed that Defendant Beard—the Secretary

of Pennsylvania’s Department of Corrections—was liable for creating and enforcing the

unconstitutional policy that led to the destruction of Coulston’s legal materials. Several

officials and Defendant Beard moved to dismiss the claims against them. The District

Court granted the motion. After the close of discovery, the remaining Defendants moved

for summary judgment, which the District Court also granted. Coulston appeals.3

                               II. Access to Courts Claims

       We will affirm the dismissal of Coulston’s access to courts claims. The

Constitution guarantees prisoners a “right of access to the courts.” Lewis v. Casey, 518

U.S. 343, 350 (1996) (emphasis omitted). Where, as here, the prisoner asserts that the

defendants’ actions have inhibited his opportunity to present a past legal claim, he must

show (1) he suffered an actual injury—that is, that he lost a chance to pursue a

“nonfrivolous” or “arguable” underlying claim; and (2) he has no other “remedy that may

be awarded as recompense” for the lost claim other than in the present denial-of-access




       2
         Coulston’s complaint also referenced his Eighth Amendment right to be free
from cruel and unusual punishment and his right to equal protection under the laws. The
District Court dismissed those claims and Coulston has not challenged their dismissal on
appeal. Accordingly, we will not address those decisions here. See United States v.
Pelullo, 399 F.3d 197, 222 (3d Cir. 2005).
       3
         We have jurisdiction under 28 U.S.C. § 1291. We review de novo both a district
court’s dismissal for failure to state a claim and the grant of summary judgment. See
Barefoot Architect, Inc. v. Bunge, 632 F.3d 822, 826 (3d Cir. 2011). We may affirm on
any grounds supported by the record. See Hughes v. Long, 242 F.3d 121, 122 n.1 (3d
Cir. 2001).
                                             4
suit. Christopher v. Harbury, 536 U.S. 403, 415 (2005); see also Monroe v. Beard, 536

F.3d 198, 205 (3d Cir. 2008).

       We first examine Coulston’s claims that prison officials interfered with his filing a

PCRA petition challenging his murder conviction as well as a federal habeas petition

challenging his aggravated robbery conviction. For his lost opportunity to file those

challenges, Coulston seeks money damages. However, under Heck v. Humphrey, 512

U.S. 477, 486-87 (1994), he cannot do so at this time. Heck holds that a damages remedy

that necessarily implies the invalidity of a criminal conviction is impermissible while that

conviction stands. Id. Coulston cannot demonstrate that the loss of his PCRA claim

injured him unless he also demonstrates that his PCRA petition had merit, which

necessarily would imply the invalidity of his murder conviction. See Burd v. Sessler, 702

F.3d 429, 434-35 (7th Cir. 2012) (holding that Heck barred the plaintiff’s § 1983 access-

to-courts claim seeking money damages for prison officials’ interference with his ability

to challenge his state court conviction); see also Hoard v. Reddy, 175 F.3d 531, 534 (7th

Cir. 1999) (“where the prisoner is complaining about being hindered in his efforts to get

his conviction set aside, the hindrance is of no consequence if the conviction was valid,

and so he cannot get damages until the conviction is invalidated”); Nance v. Vieregge,

147 F.3d 589, 591-92 (7th Cir. 1998) (same as to motion to withdraw guilty plea). The

same is true for any actual injury arising from the lost opportunity to file his proposed

federal habeas petition challenging the aggravated robbery conviction. Thus, as we have

previously recognized, any § 1983 claims cannot accrue until Coulston successfully

invalidates the underlying convictions. See Gibson v. Superintendent of N.J. Dep’t of

                                              5
Law & Pub. Safety, 411 F.3d 427, 442 (3d Cir. 2005) (“When a denial of access claim

involves a state’s suppression of evidence that is material to a criminal trial, the claim

does not accrue until the conviction is invalidated.”), overruled on other grounds by

Dique v. N.J. State Police, 603 F.3d 181 (3d Cir. 2010).

       Moreover, the District Court correctly dismissed Coulston’s access-to-courts claim

predicated on the proposed § 1983 suit against the assistant district attorney who withheld

the exculpatory evidence. That predicate claim lacks arguable merit as it too is barred by

Heck. See Amaker v. Weiner, 179 F.3d 48, 51 (2d Cir. 1999) (holding that Heck bars a

§ 1983 suit claiming that constitutional rights have “been denied by the withholding of

exculpatory evidence”). In sum, we hold that under the facts of this case, Coulston could

not maintain an action for the violation of his constitutional right to access the courts.4


       4
          We stress that the claims denied on Heck grounds are without prejudice. See
Fottler v. United States, 73 F.3d 1064, 1065-66 (10th Cir. 1996) (noting that Heck
dismissals are without prejudice). We further note that applying the Heck Rule in this
context may have unintended implications. Barring § 1983 actions for money damages
on access-to-courts claims, particularly when the alleged denial of access to the courts
concerns a petition for state collateral review, risks creating a trap for unwary pro se
litigants. When prisons deny prisoners their constitutional right to court access for state
collateral review petitions, they prevent prisoners from challenging the legality of their
convictions. If the prisoner attempts to assert his rights through a § 1983 claim but
makes the mistake of pleading his claim as one for money damages, applying the Heck
rule may insulate the underlying conviction from review despite the prison’s potentially
unconstitutional conduct.

        Prisoners may avoid this outcome by using other avenues to challenge the denial
of access to the courts and to revive challenges to their convictions. In order to ensure
access to the courts, prisoners may file a claim for injunctive relief against the prison
pursuant to § 1983. Hoard v. Reddy, 175 F.3d 531, 533 (7th Cir. 1999). They may also
ask state and federal courts to extend the time for filing habeas corpus petitions as a
result of the denial of access to the courts. In Pennsylvania, the time limit for filing a
PCRA petition may be extended when “the failure to raise the claim previously was the
                                              6
                                  III. Remaining Claims

       We will also affirm the dismissal of Coulston’s claim that Defendant Beard was

liable for creating and enforcing a facially unconstitutional policy, DC-ADM 815. Under

§ 1983, supervisors can be held liable in this context if they, “with deliberate indifference

to the consequences, established and maintained a policy, practice or custom which

directly caused the constitutional harm.” A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile

Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (internal quotation marks, alteration omitted).

Coulston has pleaded no such facts and his conclusory legal allegations that Beard is

liable for “creating and enforcing an [unconstitutional] policy” do not suffice to state a

claim. See Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009); Bell Atl. Corp. v. Twombly, 550

U.S. 544, 556 (2007).

       Moreover, the District Court properly dismissed Coulston’s claim that his legal

materials were confiscated without due process. Because Coulston had an adequate post-

deprivation state remedy, the deprivation of his property does not violate due process.

Hudson v. Palmer, 468 U.S. 517, 533 (1984). Indeed, Coulston challenged the seizure of

his property through the prison’s administrative grievance process, see Tillman v.




result of interference by government officials with the presentation of the claim in
violation of the Constitution or laws of this Commonwealth or the Constitution or laws of
the United States.” 42 Pa. C.S.A. § 9545(b)(1)(i). If the prisoner has already exhausted
the state collateral review process, denial of access to the courts may extend the time as
well for filing a federal habeas corpus petition pursuant to 28 U.S.C. § 2254. See Butler
v. Walsh, 846 F. Supp. 2d 324, 331 (E.D. Pa. 2012). Heck is thus an obstacle, but not an
insurmountable one, to obtaining review of a conviction when a prisoner is denied access
to the courts.


                                              7
Lebanon County Corr. Facility, 221 F.3d 410, 422 (3d Cir. 2000), and in appealing his

misconduct citations.

       Finally, to the extent that Coulston’s complaint asserted that Defendants’ actions

violated his free speech rights, his complaint contains nothing more than vague and

conclusory allegations. Twombly, 550 U.S. at 555. Accordingly, we conclude that the

District Court correctly dismissed that claim.

                                     IV. Conclusion

       For these reasons, we will affirm the District Court’s judgment in favor of

Defendants.




                                             8
