                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-18-2007

Weldon v. Wickiser
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1312




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Recommended Citation
"Weldon v. Wickiser" (2007). 2007 Decisions. Paper 729.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/729


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BLD-287                                              NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                   NO. 07-1312
                                ________________

                              ROBERT C. WELDON,

                                         Appellant

                                           v.

  JOHN WICKISER; SUPERINTENDENT JAMES WYNDER; DANIEL ZIELEN,
      Lieutenant at SCI Dallas; NORMAN DEMMING, Program Manager at
             SCI Dallas; VINCENT MOONEY, Major at SCI Dallas;
    GARY GORDON, Unit Manager at SCI Dallas; ROBIN LUCAS, Grievance
        Coordinator at SCI Dallas; SHARON M. BURKS, Chief Grievance
                             Coordinator (Camp Hill)


                    ____________________________________

                  On Appeal From the United States District Court
                      For the Middle District of Pennsylvania
                             (D.C. Civ. No. 07-cv-00077)
                  District Judge: Honorable William W. Caldwell
                  _______________________________________

          Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                   June 28, 2007

   Before: MCKEE, FUENTES AND VAN ANTWERPEN, CIRCUIT JUDGES.

                               (Filed: July 18, 2007)

                            _______________________

                                    OPINION
                            _______________________
PER CURIAM

       Appellant Robert C. Weldon, an inmate at the State Correctional Institution in

Dallas, Pennsylvania, filed a pro se appeal from an order of the United States District

Court for the Middle District of Pennsylvania dismissing his civil rights action under 28

U.S.C. §1915(e)(2)(B)(ii) for failing to state a claim on which relief could be granted.

       While his complaint is not a model of clarity, Weldon appears to allege that his

Due Process rights were violated when his thirty-six-dollar watch disappeared while he

was placed in a “P.O.R.” unit and when a prison lieutenant lied during the subsequent

grievance procedure. Weldon claims the prison lieutenant lied when he stated that the

Waymart State Correctional Institution informed him that it could not access any record

of Weldon purchasing a watch there. As proof of this alleged lie, Weldon points to a later

statement in a Pennsylvania Department of Corrections progress report indicating that the

lieutenant determined that Weldon had purchased a watch at the Waymart State

Correctional Institution.

       The District Court held that Weldon had failed to state a claim because the

intentional deprivation of property by a state employee does not constitute a violation of

the procedural requirements of the Due Process Clause where a meaningful

postdeprivation remedy for the loss is available. The District Court reasoned that Weldon

had been provided a meaningful postdeprivation remedy in the form of the Pennsylvania

prison grievance system.

                                             2
       Because Weldon is proceeding in forma pauperis, we must analyze the appeal for

possible dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). Under § 1915(e)(2)(B), we

must dismiss an appeal if the underlying action (i) is frivolous or malicious, (ii) fails to

state a claim upon which relief may be granted, or (iii) seeks monetary damages from a

defendant with immunity. An appeal may be dismissed as frivolous if it has no arguable

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

       In order to establish a 42 U.S.C. §1983 civil rights claim, a claimant must show:

“(1) that the conduct complained of was committed by a person acting under color of state

law; and (2) that the conduct deprived a person of rights, privileges, or immunities

secured by the Constitution or laws of the United States.” Robb v. City of Philadelphia,

733 F.2d 286, 290-91 (3d Cir. 1984) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981)).

       We agree with the District Court that Weldon’s Due Process rights were not

violated. Weldon was provided with a meaningful postdeprivation remedy regarding the

loss of his watch in the form of the prison grievance system. See Hudson v. Palmer, 468

U.S. 517, 533 (1984) (“[A]n unauthorized intentional deprivation of property by a state

employee does not constitute a violation of the procedural requirements of the Due

Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for

the loss is available.”); Tillman v. Lebanon County Corr. Facility, 221 F.3d 410, 422 (3d

Cir. 2000) (prison grievance procedure provides an adequate post-deprivation remedy).

Further, Weldon was afforded due process with respect to his allegation that a lieutenant

had lied. Weldon filed a grievance about this claim which was reviewed and denied. In

                                               3
any event, we see no contradiction between an earlier statement that the Waymart

commissary could not access a record of a watch purchase, and a later statement that the

lieutenant had determined Weldon purchased a watch at Waymart.

      For these reasons, we will dismiss the appeal pursuant to 28 U.S.C. §

1915(e)(2)(B). Weldon’s motion for counsel is denied.



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