         13-4011-cv
         Kalican v. Dzurenda


                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1               At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2       Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
 3       21st day of November, two thousand fourteen.
 4
 5       PRESENT:
 6                   ROSEMARY S. POOLER,
 7                   RICHARD C. WESLEY,
 8                   RAYMOND J. LOHIER, JR.,
 9                         Circuit Judges.
10       _____________________________________
11
12       Kurtulus K. Kalican,
13
14                               Plaintiff-Appellant,
15
16                         v.                                                 13-4011
17
18       James E. Dzurenda, et al.,
19
20                         Defendants-Appellees.
21       _____________________________________
22
23       FOR PLAINTIFF-APPELLANT:                       Kurtulus K. Kalican, pro se, Suffield, CT
24
25       FOR APPELLEES:                                 No Appearance
26
27
28
29

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 1         Appeal from a judgment and order of the United States District Court for the District of
 2   Connecticut (Underhill, J.).
 3
 4         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
 5   DECREED that the judgment of the district court is AFFIRMED in part, VACATED in part,
 6   and REMANDED for further proceedings consistent with this opinion. IT IS FURTHER
 7   ORDERED that the order denying reconsideration is AFFIRMED in part and, in part,
 8   DISMISSED as moot.
 9
10          Appellant Kurtulus Kalican, proceeding pro se, appeals from the district court’s
11   February 26, 2013 judgment dismissing his civil rights complaints, and its August 6, 2013 order
12   denying reconsideration of the dismissal of those claims. We assume the parties’ familiarity
13   with the underlying facts, the procedural history of the case, and the issues on appeal.
14
15          We review a district court’s sua sponte dismissal of a complaint de novo. See McEachin
16   v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004). Pro se submissions are generally reviewed
17   with “special solicitude,” and we interpret them to raise the strongest claims suggested.
18   Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006). A district court should
19   not dismiss a pro se complaint without granting leave to amend unless doing so would be futile.
20   See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). We review a district court’s
21   determination that a claim is barred by the statute of limitations de novo and its decision not to
22   apply equitable tolling for abuse of discretion. A.Q.C. ex rel. Castillo v. United States, 656 F.3d
23   135, 140, 144 (2d Cir. 2011).
24
25           The district court properly ruled that Kalican’s due process claims failed as a matter of
26   law. In his first claim, Kalican alleged that, on August 26, 2009, Warden Alves wrongfully
27   denied his appeal from a prison grievance against correction officers for “conspiring against
28   him for no reason.” This allegation fails to state a claim. Grievance procedures, which are
29   creatures of state law, are not interests independently protected by the Constitution because the
30   failure to investigate a grievance does not increase a prisoner’s sentence or impose an “atypical
31   and significant hardship . . . in relation to the ordinary incidents of prison life.” Sandin v.
32   Conner, 515 U.S. 472, 483–84 (1995) (holding that Hawaii prison regulation did not afford
33   prisoner with a protected liberty interest); see also Geiger v. Jowers, 404 F.3d 371, 373–74 (5th
34   Cir. 2005) (applying Sandin and holding that prisoner did not have a due process right to have
35   his grievances investigated to his satisfaction). Further, the district court did not err by failing
36   to grant leave to amend because the claim would have failed even if artfully pleaded.
37
38           The district court also correctly ruled that Kalican’s stolen-property allegations failed to
39   state a claim. A prisoner cannot challenge the random and unauthorized deprivation of property
40   in a 42 U.S.C. § 1983 action if the State provides adequate postdeprivation process. Hudson v.
41   Palmer, 468 U.S. 517, 531–33 (1984). Connecticut provides a remedy for payment or refund of
42   stolen property. See Conn. Gen. Stat. § 4-141. Kalican does not argue that this procedure is
43   inadequate. Leave to amend would have been futile because Kalican does not seek to challenge
44   this review process as deficient in theory or in practice. See Port Dock & Stone Corp. v.

                                                      2
 1   Oldcastle Ne., Inc., 507 F.3d 117, 127 (2d Cir. 2007) (denying remand to replead where
 2   appellant failed to supply allegations that would have stated a claim). Accordingly, the district
 3   court’s judgment is affirmed as to Kalican’s appeal from the dismissal of his due process claims
 4   on the merits.
 5
 6           However, the district court erred in ruling that Kalican waited until July 2012 to file his
 7   complaint. “A civil action is commenced by filing a complaint with the [district] court.” Fed.
 8   R. Civ. P. 3. A complaint is deemed filed when the Clerk of Court receives it, see Rosenberg v.
 9   Martin, 478 F.2d 520, 522 n.1a (2d Cir. 1973), or, in the case of a prisoner proceeding pro se,
10   when the complaint is given to prison officials to be mailed, see Dory v. Ryan, 999 F.2d 679,
11   682 (2d Cir. 1993). “The clerk must not refuse to file a paper solely because it is not in the
12   form prescribed by [the Federal Rules of Civil Procedure] or by a local rule or practice.” Fed.
13   R. Civ. P. 5(d)(4). We have held that “[t]he better course is for pro se submissions to be
14   docketed and filed so that they appear in the record of the case. If the submissions are deficient,
15   that matter can be addressed through an order or letter of the district court or the magistrate
16   judge.” Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 192 (2d Cir. 2008) (internal citation
17   omitted).
18
19           In this case, Kalican alleged that he mailed a complaint for filing in March 2012, but the
20   clerk refused to docket it because it was unsigned. The district court ruled that Kalican was not
21   entitled to equitable tolling under the circumstances alleged. However, if these allegations are
22   accepted as true, they establish the date when Kalican “filed” his complaint, even in the absence
23   of equitable tolling. See Contino v. United States, 535 F.3d 124, 127 (2d Cir. 2008) (explaining
24   that where an appellant fails to sign a notice of appeal, “the failure to sign may be remedied
25   after the time period for filing the notice has expired”) (citing Becker v. Montgomery, 532 U.S.
26   757, 768 (2001)); see also Toliver v. Sullivan Cnty., 841 F.2d 41, 42 (2d Cir. 1988) (holding
27   that complaint was timely filed where the clerk’s office received it prior to the expiration of the
28   limitations period, but did not formally file it on the docket until after granting plaintiff’s in
29   forma pauperis application, at which point the limitations period had run). Kalican’s unsigned
30   complaint should not have been rejected and returned; it should have been filed, and Kalican (a
31   foreign-born, pro se prisoner) should have been directed to fix any technical errors of legal
32   procedure. See Fed. R. Civ. P. 5(d)(4); Sealed Plaintiff, 537 F.3d at 191. Accordingly, the
33   judgment is vacated and remanded, in part, and the district court should determine when
34   Kalican delivered an unsigned complaint to prison officials for mailing and whether any of the
35   claims dismissed as barred by the statute of limitations would now be considered timely.
36
37           We review a district court’s denial of reconsideration for abuse of discretion. Johnson v.
38   Univ. of Rochester Med. Ctr., 642 F.3d 121, 125 (2d Cir. 2011). To the extent that Kalican
39   sought to challenge the district court’s dismissal of his claims on the merits, the district court’s
40   order is affirmed because the reconsideration motion sought only to “relitigate an issue already
41   decided.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). Kalican provided no
42   reason to second-guess the district court’s dismissal of those claims without leave to replead.
43   To the extent Kalican sought reconsideration of the district court’s statute-of-limitations ruling,
44   that appeal is mooted by our remand.

                                                      3
1           Accordingly, we AFFIRM the district court judgment in part and, in part, VACATE
2   and REMAND. Further, we AFFIRM the district court’s reconsideration order in part and, in
3   part, DISMISS the appeal therefrom as moot.
4
5                                             FOR THE COURT:
6                                             Catherine O’Hagan Wolfe, Clerk

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