ALD-171 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 18-3391 ___________

MANUEL HERNANDEZ, Appellant

v.

CORRECTIONS EMERGENCY RESPONSE TEAM; SECRETARY JOHN E. WETZEL; SUPERINTENDENT TAMMY FERGUSON; JOHN/JANE DOE(S) ____________________________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 2-18-cv-03815) District Judge: Honorable Gerald J. Pappert ____________________________________

Submitted for Possible Dismissal Pursuant to

(e)(2)(B) or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 April 25, 2019

Before: McKEE, SHWARTZ and BIBAS, Circuit Judges

(Opinion filed June 18, 2019) _________

OPINION* _________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PER CURIAM

Manuel Hernandez appeals from an order of the United States District Court for

the Eastern District of Pennsylvania, which dismissed his civil rights complaint under

(e)(2)(B)(ii), for failure to state a claim upon which relief could be granted.

Because no substantial question is presented by the appeal, we will summarily affirm the

District Court’s judgment. See 3d Cir. LAR 27.4 and I.O.P. 10.6.

Hernandez alleged in his complaint that when he and all other prisoners were

moved from SCI Graterford to SCI Phoenix, many prisoners’ possessions were destroyed

or damaged, including his legal materials. The District Court dismissed his complaint

without prejudice for failing to state a claim upon which relief could be granted, under

(e)(2)(B)(ii). Dkt. #7. The order and accompanying memorandum (Dkt.

#6) explained to Hernandez the deficiencies in the complaint, and allowed him thirty days

in which to file an amended complaint. Dkt. #7.

Hernandez timely filed an amended complaint, alleging that, when prisoners’

possessions were moved from Graterford to Phoenix, members of the Corrections

Emergency Response Team (“CERT”) “destroyed and/or discarded [his] legal material

and paperwork to his pending criminal case . . . while [his] legal materials and paperwork

were under the care, custody, control, and possession of CERT,” that prison officials

failed to investigate and attempted to cover up CERT’s actions (in part, by suspending

the grievance system), and that his grievance was eventually denied “without

compensation, reimbursement and/or replacement of his legal materials and paperwork.”

Amended Complaint, Dkt. #8 at electronic pages 4, 9-10. Hernandez alleged that his

2 rights under the First, Fourth, Eighth, Ninth, and Fourteenth Amendments of the United

States Constitution were violated, and that prison policy was also violated.

.

Hernandez asked for $60,000 in damages, which he calculated as the cost of replacing

about 20,000 pages of his legal documents (including retrieval from archives, plus copy

costs).

. The District Court dismissed the amended complaint, determining that

the complaint still failed to state a claim upon which relief could be granted. Hernandez

timely appealed.

We have jurisdiction under

. Our review of a dismissal for

failure to state a claim pursuant to

(e)(2)(B)(ii), like that of a dismissal

on a party’s motion under Federal Rule of Civil Procedure 12(b)(6), is de novo. See

generally Allah v. Seiverling,

(3d Cir. 2000). “To survive a motion to

dismiss, 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,

(2009)

(quoting Bell Atlantic Corp. v. Twombly,

(2007)).

We agree with the District Court that Hernandez’s amended complaint fails to

state a plausible constitutional claim. The Due Process Clause is not implicated by a state

official’s negligent act which causes loss of or damage to property. Daniels v. Williams,

(1986). To the extent Hernandez claims that prison employees or

officials intentionally destroyed or lost his property, he has failed to state a procedural

due process claim since a meaningful post-deprivation remedy for his loss was available.

See Hudson v. Palmer,

(1984). Hernandez was afforded an adequate

post-deprivation remedy, through Pennsylvania’s inmate grievance procedures. See

3 Tillman v. Lebanon County Corr. Facility,

(3d Cir. 2000) (prisoner

had adequate post-deprivation remedy through grievance system that allowed prisoners to

complain about “any” matter that is “unjust” and provided for direct appeal to the

warden). The availability of the prison grievance process, which he utilized, forecloses

Hernandez’s due process claim. See Monroe v. Beard,

(3d Cir. 2008).

Even if the prison grievance procedures could be considered constitutionally inadequate,

Pennsylvania’s state tort law would provide an adequate remedy. See 42 Pa. Cons. Stat.

Ann. § 8522(b)(3).

To the extent Hernandez was raising a claim that he was denied access to the

courts, we agree that he failed to allege, as required, that his efforts to pursue a legal

claim were hindered and that he suffered an actual injury. See Lewis v. Casey,

(1996). Hernandez does not allege that he missed any deadline or otherwise

was hindered in pursuing the post-conviction proceeding that was pending at the time his

property was lost or destroyed.

For these reasons, and the additional reasons given by the District Court,1 we

agree that Hernandez’s complaint failed to state a constitutional claim upon which relief

could be granted. In reaching this conclusion, we do not wish to understate or minimize

the loss that Hernandez has described in his complaint; we hold only that he has not

stated a claim for the violation of a constitutional right.

We thus will affirm the District Court’s judgment.

1 We agree with the District Court that Hernandez’s complaint also failed to state a claim under the Fourth, Eighth, and Ninth Amendments. 4