DLD-004                                                     NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                  No. 12-2959
                                  ___________

                               MARK A. NIXON,
                                          Appellant

                                        v.

     SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
           JOHN KERESTES, Superintendent of S.C.I. Mahanoy;
        MIKULSKI, Grievance Coordinator; NEVIS, Business Manager;
            TRACEY BROKENSHIRE, Mail Room Supervisor;
                  B. RALSTON, Mail Room Inspector
              ____________________________________

                On Appeal from the United States District Court
                     for the Middle District of Pennsylvania
                          (D.C. Civil No. 1:12-cv-01154
                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
                                 October 4, 2012

           Before: AMBRO, SMITH and CHAGARES, Circuit Judges


                        (Opinion filed: October 12, 2012)

                              _________________

                                  OPINION
                              _________________

PER CURIAM
       Mark Nixon, an inmate incarcerated at SCI Mahanoy in Frackville, Pennsylvania

and proceeding pro se, appeals from an order 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. Because this appeal does not present a substantial question, we will

summarily affirm the District Court‟s order. See 3d Cir. L.A.R 27.4; I.O.P. 10.6.

       Because we primarily write for the parties, we need only recite the facts necessary

for our discussion. In submissions to the District Court, Nixon alleges that on February

17, 2012, he received an “unacceptable correspondence” form from the mail room at SCI

Mahanoy, notifying him that incoming mail sent to him had been confiscated because

inmates could not receive copies of Facebook pages. Nixon timely filed an

administrative grievance and asserts that the mail confiscation policy provides that “all

mail and property that is the subject of a grievance should be held until the exhaustion of

grievance or the time has expired to exhaust grievance.” (Nixon v. Wetzel, M.D. Pa. Civ.

No. 1:12-cv-01154, Docket # 1 at 3.) According to Nixon, the piece of mail at issue was

destroyed prior to completion of administrative review.

       On June 18, 2012, Nixon filed this civil rights action in the District Court and was

granted permission to proceed in forma pauperis. On July 3, 2012, the District Court

entered a Memorandum and Order dismissing Nixon‟s complaint for failure to state a

claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Nixon then timely filed this appeal.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and exercise

plenary review over the District Court‟s dismissal order. See Allah v. Seiverling, 229
                                             2
F.3d 220, 223 (3d Cir. 2000). The legal standard for dismissing a complaint for failure to

state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) is the same as that for dismissing a

complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). See id. To survive

dismissal, “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, 556 U.S. 662, 678 (2009)

(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This Court affirms

a district court‟s dismissal for failure to state a claim “only if, accepting all factual

allegations as true and construing the complaint in the light most favorable to the

plaintiff, we determine that the plaintiff is not entitled to relief under any reasonable

reading of the complaint.” McGovern v. City of Philadelphia, 554 F.3d 114, 115 (3d Cir.

2009). We may affirm the District Court on any basis supported by the record.

Brightwell v. Lehman, 637 F.3d 187, 191 (3d Cir. 2011) (citations omitted).

       The District Court properly dismissed Nixon‟s complaint.1 “[P]risoners, by virtue

of their incarceration, „do not forfeit their First Amendment right to use of the mails.‟”

Jones v. Brown, 461 F.3d 353, 358 (3d Cir. 2006) (quoting Bieregu v. Reno, 59 F.3d

1445, 1452 (3d Cir. 1995)). However, inmates‟ right to receive and send mail can be


1
  The District Court did not provide Nixon leave to amend his complaint because “[g]iven
the facts alleged by plaintiff, allowing him to amend would be futile.” (Nixon v. Wetzel,
M.D. Pa. Civ No. 1:12-cv-01154, Docket # 9 at 6); see Grayson v. Mayview State Hosp.,
293 F.3d 103, 114 (3d Cir. 2002) (noting that courts should not dismiss pro se complaints
without granting leave to amend unless “amendment would be inequitable or futile”).
We conclude that the District Court did not err in declining to allow Nixon an
opportunity to amend his complaint because, as discussed below, Nixon‟s underlying
claim lacks merit.
                                                3
restricted for legitimate penological interests. See Thornburgh v. Abbott, 490 U.S. 401,

407 (1989); Turner v. Safley, 481 U.S. 78, 89 (1987). Here, the District Court correctly

determined that Nixon‟s claim alleging a single, isolated interference with his personal

mail was insufficient to constitute a First Amendment violation.2 See Bieregu, 59 F.3d at

1452, abrogated on other grounds by Lewis v. Casey, 518 U.S. 343 (1996) (“We decline

to hold that a single instance of damaged mail rises to the level of constitutionally

impermissible censorship.”); see also Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003)

(“[A]n isolated incident of mail tampering is usually insufficient to establish a

constitutional violation.”); Washington v. James, 782 F.2d 1134, 1139 (2d Cir. 1986) (a

single isolated incident of interference with an inmate‟s mail is insufficient to state a

claim under § 1983).

         For the foregoing reasons, no substantial question is presented and we will affirm

the judgment of the District Court. See 3d Cir. L.A.R 27.4; I.O.P. 10.6. Nixon‟s motion

for appointment of counsel is denied. See Tabron v. Grace, 6 F.3d 147, 155-56 (3d Cir.

1993).


2
  In his argument supporting his appeal, Nixon claims that he was deprived of access to
the courts because he suffered an “actual injury” when the piece of mail was destroyed
before his administrative remedies were exhausted. However, such a claim must relate to
either a direct or collateral challenge to the prisoner‟s sentence or conditions of
confinement. Lewis v. Casey, 518 U.S. 343, 355 (1996) (“Impairment of any other
litigating capacity is simply one of the incidental . . . consequences of conviction and
incarceration.”). Here, Nixon‟s claim does not even relate to his ability to access the
courts to challenge his sentence or conditions of confinement; instead, he challenges his
inability to receive copies of another individual‟s Facebook page in the mail. Therefore,
his reliance on Lewis is misplaced.
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