# Pettis v. Everhart

> District Court, M.D. Pennsylvania · September 16, 2020

URL: https://www.frixlaw.com/law-library/cases/10409459

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** September 16, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10409459

## How later opinions describe it (automated extraction)

- discussing a court’s obligation to liberally construe pro se pleadings and other submissions, particularly when dealing with imprisoned pro se litigants

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA

ALEX PETTIS, #NP-1683,

Plaintiff, CIVIL ACTION NO. 3:19-CV-1308

v. (SAPORITO, M.J.)

CORRECTIONAL OFFICER
EVERHART, et al.,

Defendants.

MEMORANDUM
This federal civil rights action commenced on July 29, 2019, when
the Clerk received and lodged a pro se complaint from the plaintiff, Alex
Pettis, signed and dated on July 24, 2019. (Doc. 1.) The complaint was
not accompanied by payment of the requisite filing and administrative
fees. On August 29, 2019, the plaintiff filed a motion for leave to proceed
in forma pauperis. (Doc. 4.) On October 1, 2019, we granted the plaintiff
leave to proceed in forma pauperis, at which time the complaint was
deemed filed. (Doc. 8.) On December 27, 2019, the plaintiff filed his
amended complaint. (Doc. 17.)
The defendants have moved to dismiss the complaint for failure to
state a claim upon which relief can be granted, pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure. (Doc. 19; see also Doc. 20.) Despite

multiple extensions of time, the plaintiff has failed to file a brief in
opposition.
I. BACKGROUND
The plaintiff is a convicted state prisoner, incarcerated at SCI

Rockview, a state correctional institution in Centre County,
Pennsylvania. In his pro se amended complaint, the plaintiff claims that,
on September 27, 2017, defendants Everhart and Wykoff, correctional

officers at SCI Rockview, confiscated legal papers related to Pettis’s
criminal proceedings, which were on direct appeal at the time. These

legal papers included bank account information and notes on surveillance
video footage, all related to the plaintiff’s criminal proceedings.
Pettis submitted an inmate grievance, which was denied by the

investigating grievance officer, defendant Lieutenant Vance. Pettis
appealed the grievance, which was ultimately denied in January 2018 by
defendant Keri Moore, an assistant chief grievance officer who signed on

behalf of Dorina Varner, the statewide chief grievance officer for the
Pennsylvania Department of Corrections (“DOC”). During the grievance
investigation process, correctional officers Everhart and Wykoff were
interviewed and stated that they removed “scrap paper” from Pettis’s cell,

which was discarded as trash.
Pettis claims that the confiscation of these legal papers violated
DOC policies and the proscriptions of First, Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution. For relief, he seeks
$5,000 in compensatory damages and $10,000 in punitive damages.
II. LEGAL STANDARDS
A. Rule 12(b)(1) Standard

A Rule 12(b)(1) motion1 is the proper mechanism for raising the
issue of whether Eleventh Amendment immunity bars the exercise of
federal jurisdiction. Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690,

694 n.2 (3d Cir. 1996) (citing Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 98–100 (1984)). The plaintiff bears the burden of
establishing the existence of subject matter jurisdiction when challenged

1 Although the defendants do not address the plaintiff’s official-
capacity claims or Eleventh Amendment immunity from suit in their
motion papers, the Court is permitted to raise the issue of its own subject
matter jurisdiction sua sponte. See Liberty Mut. Ins. Co. v. Ward Trucking
Corp., 48 F.3d 742, 750 (3d Cir. 1995) (“Federal courts have an ever-
present obligation to satisfy themselves of their subject matter
jurisdiction and to decide the issue sua sponte . . . .”); Johnson v. United
States, Civil No. 1:CV-08-0816, 2009 WL 2762729, at *2 (M.D. Pa. Aug.
27, 2009).
under Rule 12(b)(1). See Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d

1406, 1409 (3d Cir. 1991). A defendant may challenge the existence of
subject matter jurisdiction in one of two fashions: it may attack the
complaint on its face or it may attack the existence of subject matter

jurisdiction in fact, relying on evidence beyond the pleadings. See Gould
Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000); Mortensen
v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). Where

a defendant attacks a complaint as deficient on its face, “the court must
consider the allegations of the complaint as true.” Mortensen, 549 F.2d at
891. “In deciding a Rule 12(b)(1) facial attack, the court may only consider

the allegations contained in the complaint and the exhibits attached to
the complaint; matters of public record such as court records, letter
decisions of government agencies and published reports of administrative

bodies; and ‘undisputably authentic’ documents which the plaintiff has
identified as a basis of his claims and which the defendant has attached
as exhibits to his motion to dismiss.” Medici v. Pocono Mountain Sch.

Dist., No. 09-CV-2344, 2010 WL 1006917, at *2 (M.D. Pa. Mar. 16, 2010).
However, when a motion to dismiss attacks the existence of subject
matter jurisdiction in fact, “no presumptive truthfulness attaches to
plaintiff’s allegations,” and “the trial court is free to weigh the evidence

and satisfy itself as to the existence of its power to hear the case.”
Mortensen, 549 F.2d at 891. This case falls into the former category.
B. Rule 12(b)(6) Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a

defendant to move to dismiss for “failure to state a claim upon which
relief can be granted.” Fed. R. Civ. P. 12(b)(6). Although a plaintiff is
entitled to notice and an opportunity to respond to a motion to dismiss,

he has no obligation to do so—he may opt to stand on the pleadings rather
than file an opposition. The Court must nevertheless examine the

complaint and determine whether it states a claim as a matter of law.
Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991); Anchorage
Assocs. v. Virgin Islands Bd. of Tax Review, 922 F2d 168, 174 (3d Cir.

1990).
“Under Rule 12(b)(6), a motion to dismiss may be granted only if,
accepting all well-pleaded allegations in the complaint as true and

viewing them in the light most favorable to the plaintiff, a court finds the
plaintiff’s claims lack facial plausibility.” Warren Gen. Hosp. v. Amgen
Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555–56 (2007)). In deciding the motion, the Court may

consider the facts alleged on the face of the complaint, as well as
“documents incorporated into the complaint by reference, and matters of
which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues &

Rights, Ltd., 551 U.S. 308, 322 (2007). Although the Court must accept
the fact allegations in the complaint as true, it is not compelled to accept
“unsupported conclusions and unwarranted inferences, or a legal

conclusion couched as a factual allegation.” Morrow v. Balaski, 719 F.3d
160, 165 (3d Cir. 2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195
(3d Cir. 2007)). Nor is it required to credit factual allegations contradicted

by indisputably authentic documents on which the complaint relies or
matters of public record of which we may take judicial notice. In re
Washington Mut. Inc., 741 Fed. App’x 88, 91 n.3 (3d Cir. 2018); Sourovelis

v. City of Philadelphia, 246 F. Supp. 3d 1058, 1075 (E.D. Pa. 2017); Banks
v. Cty. of Allegheny, 568 F. Supp. 2d 579, 588–89 (W.D. Pa. 2008).
C. Sua Sponte Dismissal Standard

Under 28 U.S.C. § 1915A, the Court is obligated to screen a civil
complaint in which a prisoner is seeking redress from a governmental
entity or an officer or employee of a governmental entity. 28 U.S.C.
§ 1915A(a); James v. Pa. Dep’t of Corr., 230 Fed. App’x 195, 197 (3d Cir.

2007). The Court must dismiss the complaint if it “fails to state a claim
upon which relief may be granted.” 28 U.S.C. § 1915A(b)(1). The Court
has a similar obligation with respect to actions brought in forma pauperis

and actions concerning prison conditions. See id. § 1915(e)(2)(B)(ii); 42
U.S.C. § 1997e(c)(1). See generally Banks v. Cty. of Allegheny, 568 F.
Supp. 2d 579, 587–89 (W.D. Pa. 2008) (summarizing prisoner litigation

screening procedures and standards). The legal standard for dismissing
a complaint for failure to state a claim under § 1915A(b)(1),
§ 1915(e)(2)(B)(ii), or § 1997e(c) is the same as that for dismissing a

complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Brodzki v. Tribune Co., 481 Fed. App’x 705, 706 (3d Cir. 2012)
(per curiam); Mitchell v. Dodrill, 696 F. Supp. 2d 454, 471 (M.D. Pa.

2010); Banks, 568 F. Supp. 2d at 588.
III. DISCUSSION
The plaintiff brings this action for damages under 42 U.S.C. § 1983.

Section 1983 provides in pertinent part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress . . . .
42 U.S.C. § 1983. Section 1983 does not create substantive rights, but
instead provides remedies for rights established elsewhere. City of
Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). To establish a § 1983
claim, a plaintiff must establish that the defendants, acting under color
of state law, deprived the plaintiff of a right secured by the United States

Constitution. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.
1995). To avoid dismissal for failure to state a claim, a civil rights

complaint must state the conduct, time, place, and persons responsible
for the alleged civil rights violations. Evancho v. Fisher, 423 F.3d 347,
353 (3d Cir. 2005).

A. Official-Capacity Claims
The pro se amended complaint states that the defendants are sued
in both their personal and official capacities.
Absent abrogation by Congress or waiver by the state, the Eleventh

Amendment to the United States Constitution provides that states, and
their constituent agencies or departments, are immune from suit in
federal court. Pennhurst State. Sch. & Hosp. v. Halderman, 465 U.S. 89,

101–02 (1984). The Pennsylvania Department of Corrections is one such
state agency entitled to Eleventh Amendment immunity from suit. Lavia
v. Pa. Dep’t of Corrs., 224 F.3d 190, 195 (3d Cir. 2000); Hollihan v. Pa.

Dep’t of Corrs., 159 F. Supp. 3d 502, 510 (M.D. Pa. 2016). The
Commonwealth of Pennsylvania has expressly declined to waive its
sovereign immunity in federal court. See 42 Pa. Cons. Stat. Ann.

§ 8521(b); Lavia, 224 F.3d at 195; Hollihan, 159 F. Supp. 3d at 510. To
the extent the plaintiff seeks to recover money damages from any
individual defendant in his or her official capacity, that claim is likewise

barred by the Eleventh Amendment. See Betts v. New Castle Youth Dev’p
Ctr., 621 F.3d 249, 254 (3d Cir. 2010) (“Individual state employees sued
in their official capacity are also entitled to Eleventh Amendment

immunity because ‘official-capacity suits generally represent only
another way of pleading an action’ against the state.”) (quoting Hafer v.
Melo, 502 U.S. 21, 25 (1991)); see also Pennhurst, 465 U.S. at 120–21

(Eleventh Amendment bars pendent state-law claims); Chee-Wah v.
Maurer, 663 Fed. App’x 194, 198 (3d Cir. 2016) (per curiam) (same).
Accordingly, the plaintiff’s claims against the defendants in their
official capacity shall be dismissed sua sponte for lack of subject matter

jurisdiction, pursuant to Rule 12(b)(1) of the Federal Rules of Civil
Procedure.
B. Personal Involvement
The pro se amended complaint asserts claims against defendants

Vance and Moore based on their roles in the inmate grievance process.
Defendant Vance initially investigated and denied Pettis’s grievance, and
defendant Moore reviewed and ultimately denied the grievance.

But “[c]ivil rights claims cannot be premised on a theory of
respondeat superior. Rather, each named defendant must be shown, via

the complaint’s allegations, to have been personally involved in the
events or occurrences which underlie a claim.” Millbrook v. United States,
8 F. Supp. 3d 601, 613 (M.D. Pa. 2014) (citation omitted) (emphasis

added). As previously explained by the Third Circuit:
A defendant in a civil rights action must have personal
involvement in the alleged wrongs . . . . [P]ersonal
involvement can be shown through allegations of
personal direction or of actual knowledge and
acquiescence. Allegations of participation or actual
knowledge and acquiescence, however, must be made
with appropriate particularity.
Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Although a
supervisor cannot encourage constitutional violations, a supervisor has

“no affirmative constitutional duty to train, supervise or discipline so as
to prevent such conduct.” Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir.
1986).

The complaint fails to allege any personal involvement whatsoever
by Lieutenant Vance or Assistant Chief Grievance Officer Moore. It is
well-settled that if a prison official’s only involvement is investigating or

ruling on an inmate’s grievance after the incident giving rise to the
grievance has occurred, there is no personal involvement on the part of
that official. See Rode, 845 F.2d at 1208; see also Brooks v. Beard, 167

Fed. App’x 923, 925 (3d Cir. 2006) (per curiam) (characterizing such a
claim as legally frivolous). “[T]he mere fact that an official receives and
reviews a letter or grievance appeal is insufficient to establish personal

involvement (i.e., failure to respond or react does not establish that the
official endorsed or acquiesced in the conduct at issue).” Hennis v. Varner,
Civil Action No. 12-646, 2014 WL 1317556, at *9 (W.D. Pa. Mar. 31,

2014); see also Moore v. Mann, Civil No. 3:CV-13-2771, 2015 WL 3755045,
at *4 (M.D. Pa. June 16, 2015) (“[T]he mere fact that [the defendant] may
have learned about Plaintiff’s claims through a piece of
correspondence . . . is not enough to impute liability to [the

defendant]. . . . [A]n allegation that an official ignored correspondence
from an inmate . . . is insufficient to impose liability on the supervisory
official.”); Adderly v. Eidem, Civil No. 3:CV-11-0694, 2014 WL 643639, at

*6 (M.D. Pa. Feb. 19, 2014) (“Simply alleging that an official failed to
respond to a letter or request Plaintiff may have sent raising complaints
is not enough to demonstrate they had the requisite personal

involvement.”).
Accordingly, the defendants’ motion will be granted and the
plaintiff’s claims against defendants Vance and Moore in their personal

capacity shall be dismissed for failure to state a claim upon which relief
can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure.

C. Violation of DOC Policies
The plaintiff claims that the confiscation and destruction of his
legal papers by defendants Everhart and Wykoff was in violation of DOC

policies governing the handling of confiscated property.
“To the extent [Pettis] seeks relief for the violation of DOC policies,
these regulations are not cognizable under 42 U.S.C. § 1983.” Johnson v.
Dep’t of Corr., Civil Action No. 1:14-cv-00896, 2016 WL 1135501, at *8

n.41 (M.D. Pa. Mar. 3, 2016), report and recommendation adopted by
2016 WL 1109471 (M.D. Pa. Mar. 22, 2016); see also Bullard v. Scism,
449 Fed. App’x 232, 235 (3d Cir. 2011) (per curiam) (“[E]ven if the [BOP’s]

regulation were violated, its violation is not actionable.”); Faircloth v.
Schwartz, Civil Action No. 12-cv-02764-REB-KLM, 2014 WL 4466663, at
*21 (D. Colo. Sept. 10, 2014) (“[Because] administrative regulations

cannot create private causes of action outside the scope of substantive
rights . . . [an inmate] has no right to enforce prison regulations through
a private legal action, except to the extent that those regulations

implicated constitutional rights.”) (citing Alexander v. Sandoval, 532
U.S. 275, 289–93 (2001)).
Accordingly, the plaintiff’s claims against defendants Everhart and

Wykoff in their personal capacity for violation of DOC policies shall be
dismissed for failure to state a claim upon which relief can be granted,
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), 28 U.S.C. § 1915A(b)(1), and 42

U.S.C. § 1997e(c)(1).
D. Access-to-Courts Claims
Pettis appears to claim that the confiscation of his legal papers
violated his constitutional right to access the courts. See generally Mala

v. Crown Bay Marina, Inc., 704 F.3d 239, 244–46 (3d Cir. 2013)
(discussing a court’s obligation to liberally construe pro se pleadings and
other submissions, particularly when dealing with imprisoned pro se

litigants).
It is well-established that “the fundamental constitutional right of
access to the courts requires prison authorities to assist inmates in the

preparation and filing of meaningful legal papers by providing prisoners
with adequate law libraries or adequate assistance from persons trained
in the law.” Bounds v. Smith, 430 U.S. 817, 828 (1977). “A prisoner

raising an access-to-courts claim must show that the denial of access
caused him to suffer an actual injury.” Garcia v. Dechan, 384 Fed. App’x
94, 95 (3d Cir. 2010) (per curiam); see also Lewis v. Casey, 518 U.S. 343,

351 (1996). “An actual injury occurs when the prisoner is prevented from
or has lost the opportunity to pursue a ‘nonfrivolous’ and ‘arguable’
claim.” Garcia, 384 Fed. App’x at 95; see also Christopher v. Harbury, 536

U.S. 403, 415 (2002). Moreover, under Bounds, the “injury requirement
is not satisfied by just any type of frustrated legal claim.” Lewis, 518 U.S.
at 354.
Bounds does not guarantee inmates the wherewithal to
transform themselves into litigating engines capable of
filing everything from shareholder derivative actions to
slip-and-fall claims. The tools it requires to be provided
are those that the inmates need in order to attack their
sentences, directly or collaterally, and in order to
challenge the conditions of their confinement.
Impairment of any other litigating capacity is simply
one of the incidental (and perfectly constitutional)
consequences of conviction and incarceration.
Id. at 355.
It is also beyond dispute that, at the time of the events underlying
Pettis’s claims, he was represented by appellate counsel in the criminal
proceedings referenced in his amended complaint. See Commonwealth v.
Pettis, 177 A.3d 829 (Pa. 2018) (per curiam) (denying allocatur on
January 3, 2018); Commonwealth v. Pettis, Docket No. 381 MAL 2017
(Pa.) (counseled petition for allocatur filed on May 11, 2017).2 The fact
that Pettis was represented by counsel in that criminal appeal forecloses
his access-to-courts claim as a matter of law. See Pressley v. Johnson, 268

Fed. App’x 181, 183 (3d Cir. 2008) (per curiam) (alleged destruction of

2 A district court may properly take judicial notice of state court
records, as well as its own. See Fed. R. Evid. 201; Sands v. McCormick,
502 F.3d 263, 268 (3d Cir. 2007); Ernst v. Child & Youth Servs. of Chester
Cty., 108 F.3d 486, 498–99 (3d Cir. 1997); Pennsylvania v. Brown, 373
F.2d 771, 778 (3d Cir. 1967).
prisoner’s legal materials did not deny access to courts where he was

represented by counsel and received a jury trial on his civil rights claims);
Walters v. Edgar, 973 F. Supp. 793, 799 (N.D. Ill. 1997) (“The fact that
counsel represented him on appeal [from a criminal conviction and

sentence] . . . satisfies the requirements of Bounds v. Smith.”); Wilson v.
Wittke, 459 F. Supp. 1345, 1346 (E.D. Wis. 1978) (“[T]he plaintiff is
represented by counsel and therefore has adequate access to the

courts. . . . [T]he plaintiff’s claim that he is being deprived of access to the
courts is clearly foreclosed by Bounds v. Smith.”); Urbano v. McCorkle,
164 (D.N.J. 1971) (finding no denial of access to the courts where prisoner

was represented by counsel and was allowed reasonable contact with
counsel), aff’d mem., 481 F.2d 1400 (3d Cir. 1973). There is no allegation
that the defendants prevented Pettis from communicating with counsel

or otherwise interfered with counsel’s efforts in that case. See Garcia, 384
Fed. App’x at 95. The Bounds decision “guarantee[d] no particular
methodology but rather the conferral of a capability—the capability of

bringing contemplated challenges to sentences or conditions of
confinement before the court.” Lewis, 518 U.S. at 356 (emphasis added).
Accordingly, the plaintiff’s access-to-courts claims against
defendants Everhart and Wykoff in their personal capacity shall be

dismissed for failure to state a claim upon which relief can be granted,
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), 28 U.S.C. § 1915A(b)(1), and 42
U.S.C. § 1997e(c)(1).

E. Fifth Amendment Claims
In cursory fashion, the pro se amended complaint references
violation of the plaintiff’s Fifth Amendment rights. But it provides no
factual allegations whatsoever to support any claims under this

provision.3 The plaintiff has failed to provide even a threadbare recital of
the elements of any cognizable § 1983 claim under the Fifth Amendment.

See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Such mere mentions are
manifestly insufficient to provide sufficient notice that [the plaintiff]
intends to claim violations of th[is] constitutional amendment[]. Thus

any attempt to state a claim based on th[is] Amendment[] fails.” Petri v.
Erie Children & Youth, Case No. 1:19-cv-00243 (Erie), 2020 WL 4041552,
at *6 n.8 (W.D. Pa. July 17, 2020) (citing Hunter v. Dist. of Columbia, 534

F. Supp. 2d 70, 71 (D.D.C. 2008)).
Accordingly, the plaintiff’s Fifth Amendment claims against

3 Nor does it specify the particular rights that were violated.
defendants Everhart and Wykoff in their personal capacity shall be

dismissed for failure to state a claim upon which relief can be granted,
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), 28 U.S.C. § 1915A(b)(1), and 42
U.S.C. § 1997e(c)(1).

F. Sixth Amendment Claims
The plaintiff claims that, in connection with the confiscation and
destruction of his legal papers, he was denied the right to confront his
accusers through the DOC’s administrative inmate grievance process, in

violation of his Sixth Amendment rights.
But the Sixth Amendment’s Confrontation Clause applies only to

criminal prosecutions. Gov’t of Virgin Islands v. A.M., 34 F.3d 153, 160
n.8 (3d Cir. 1994); Walthour v. Child & Youth Servs., 728 F. Supp. 2d 628,
636 (E.D. Pa. 2010). The DOC’s grievance process is not a criminal

proceeding, and thus it is not subject to Sixth Amendment protections.
Felder v. Lizarraga, No. 2:20-CV-0266-DMC-P, 2020 WL 4272854, at *8
(E.D. Cal. July 24, 2020); see also A.M., 34 F.3d at 160 n.8; Walthour, 728

F. Supp. 2d at 636.
Accordingly, the plaintiff’s Sixth Amendment claims against
defendants Everhart and Wykoff in their personal capacity shall be
dismissed for failure to state a claim upon which relief can be granted,

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), 28 U.S.C. § 1915A(b)(1), and 42
U.S.C. § 1997e(c)(1).
G. Fourteenth Amendment Due Process Claims
The plaintiff claims that he was deprived of his personal property—

the aforementioned legal papers—without due process of law, in violation
of his Fourteenth Amendment rights.
But the Supreme Court of the United States has held that

meaningful post-deprivation remedies provide sufficient due process for
both negligent deprivations of property, see Parratt v. Taylor, 451 U.S.

527, 540–44 (1981), overruled on other grounds, Daniels v. Williams, 474
U.S. 327 (1986), and intentional deprivations of property, see Hudson v.
Palmer, 468 U.S. 517, 533 (1984). The Third Circuit has previously held

that an inmate grievance procedure provides an adequate post-
deprivation remedy, thereby satisfying due process, even if the inmate is
dissatisfied with the result. See Tillman v. Lebanon Cty. Corr. Facility,

221 F.3d 410, 422 (3d Cir. 2000) (an internal grievance program that
allows prisoners “to complain about ‘any’ matter that is ‘unjust,’” and
provides for “direct appeal to the warden” has been found to constitute
an adequate post-deprivation remedy); Brown v. Varner, Civil Action No.

3:11-CV-1258, 2013 4591817, at *9 (M.D. Pa. Aug. 28, 2013)
(Pennsylvania inmate had access to meaningful post-deprivation
remedies for claims that property was wrongfully confiscated, and inmate

had used them by filing grievances); Rambert v. Beard, No. 4:CV-09-0634,
2012 WL 760619, at *15 (M.D. Pa. Mar. 7, 2012) (“[T]he existence of this
post-deprivation remedy forecloses any due process claim, even if an

inmate is dissatisfied with the result of the process.” (citations omitted)).
Here, Pettis had a meaningful post-deprivation remedy for the
destruction or loss of his personal property—the inmate grievance system

set forth in DC-ADM 804—and he availed himself of it, albeit without
success. The existence of this post-deprivation remedy forecloses his due
process claim, even if he is dissatisfied with the result.

Accordingly, the defendants’ motion will be granted and the
plaintiff’s Fourteenth Amendment due process claims against defendants
Everhart and Wykoff in their personal capacity shall be dismissed for

failure to state a claim upon which relief can be granted, pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure.
H. Leave to Amend
The Third Circuit has instructed that if a complaint is vulnerable

to dismissal for failure to state a claim, the district court must permit a
curative amendment, unless an amendment would be inequitable or
futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).

Based on the facts alleged in the amended complaint, it is clear that any
further amendment would be futile. Therefore, the action will be
dismissed without leave to amend.

IV. CONCLUSION
For the foregoing reasons, the defendants’ motion will be granted,
the plaintiff’s claims against the defendants in their official capacity will

be dismissed for lack of subject matter jurisdiction, and the plaintiff’s
claims against the defendants in their personal capacity will be dismissed
for failure to state a claim upon which relief can be granted. The Clerk

will be directed to mark this case as closed.
An appropriate order follows.

Dated: September 16, 2020 s/Joseph F. Saporito, Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10409459. Public record. Not legal advice.