Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-2-2005

Alexander v. Gennarini
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3781




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Recommended Citation
"Alexander v. Gennarini" (2005). 2005 Decisions. Paper 750.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/750


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CPS-236                                                     NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                    NO. 04-3781
                                 ________________

                             ANTONIO ALEXANDER,

                                           Appellant


                                           v.

                              SALLY A. GENNARINI;
                                EDWARD J. KLEM;
                               SHARON M. BURKS

                     ____________________________________

                  On Appeal From the United States District Court
                      For the Middle District of Pennsylvania
                          (M.D. Pa. Civ. No. 04-cv-1964)
                     District Judge: Honorable Malcolm Muir
                  _______________________________________

          Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                   May 12, 2005

               Before: ALITO, McKEE and AMBRO, Circuit Judges

                               (Filed August 2, 2005)
                             _______________________

                                     OPINION
                             _______________________

PER CURIAM

     Appellant Antonio Alexander, a prisoner incarcerated at the State Correctional
Institution in Dallas, Pennsylvania, filed a pro se civil rights action under 42 U.S.C. §

1983, alleging that his due process rights were violated when Defendants, employees at the

State Correctional Institution at Mahanoy, delayed the delivery of a package that had been

sent to him, thus depriving him of his personal property.1 Alexander sought injunctive

relief and punitive damages. The United States District Court for the Middle District of

Pennsylvania dismissed his complaint without prejudice pursuant to 28 U.S.C. §

1915(e)(2)(B)(i). Alexander appeals, again pro se.

       Our review of the District Court’s dismissal under § 1915(e)(2)(B)(i) is plenary.2

See Mitchell v. Horn, 

, 530 (3d Cir. 2003); Allah v. Seiverling, 

,

223 (3d Cir. 2000). We can affirm the District Court on any basis supported in the record.

See Fairview Township v. EPA, 773, F.2d 517, 524 n.15 (3d Cir. 1985). As the complaint

does not appear factually frivolous, we accept as true its factual allegations and all

reasonable inferences that can be drawn from them. See Denton v. Hernandez, 

, 32 (1992); Nami v. Fauver, 

, 65 (3d Cir. 1996).

       To bring a claim under 42 U.S.C. § 1983, Alexander must demonstrate that, while

acting under color of state law, Defendants deprived him of a right, privilege, or immunity

protected by the Constitution or by a federal statute. See Carter v. City of Philadelphia,


        1
       Inasmuch as we are writing only for the parties, we need not set forth the factual and
procedural background of this matter, except as it may be helpful to our discussion.
        2
       Although a dismissal without prejudice is ordinarily not appealable, such dismissals
pursuant to § 1915 are appealable. See Deutsch v. United States, 

, 1083 (3d Cir.
1985).

                                               2


, 119 (3d Cir. 1993). As the District Court correctly noted, to be liable under

§ 1983, a defendant must have personal involvement in the alleged wrongdoings. See

Rode v. Dellarciprete, 

, 1207-08 (3d Cir. 1988). Section 1983 liability

cannot be found solely on the basis of respondeat superior. See 

Court

properly dismissed Alexander’s claims as against Defendants Klem and Burks, as the

allegations related to these defendants merely assert their involvement in the post-incident

grievance process.

       The District Court’s dismissal of the claims against Defendant Gennarini, the only

remaining defendant, was likewise proper. A prisoner’s due process claim based on

random and unauthorized deprivation of property by a state actor is not actionable under §

1983, whether the deprivation is negligent or intentional, unless there is no adequate post-

deprivation remedy available. See Parratt v. Taylor, 

, 542 (1981) overruled

on other grounds by 

(1986); Hudson v. Palmer, 

, 533 (1984).

As noted by the District Court, Alexander availed himself of an adequate post-deprivation

remedy when he utilized the prison’s internal grievance system. See Tillman v. Lebanon

County Correctional Facility, 

, 422 (3d Cir. 2000). Alexander could also

have filed a state tort suit for conversion of property. See 

.

       On appeal, Alexander argues that the District Court did not address his claims

under the First or Eighth Amendments. Alexander fails to specify how his rights under

either of these Amendments were violated. However, as pro se pleadings must be liberally



                                              3
construed, we attempt to glean his arguments from the complaint. See Haines v. Kerner,

, 520 (1972).

       Alexander alleges “intentional interference with a prisoner’s mail rights.” To the

extent that this allegation can be construed as a free speech claim, we recognize that

prisoners retain a constitutionally protected right to reasonable correspondence with the

outside world. See Procunier v. Martinez, 

, 418 (1974), overruled on other

grounds, 

(1989). However, a single instance of damaged or withheld mail

does not constitute a First Amendment violation. See Bieregu v. Reno, 

,

1452 (3d. Cir. 1995), overruled on other grounds, 

(1996). Alexander’s

complaint fails to allege any facts which could support a valid claim under the Eighth

Amendment.

       We will dismiss this appeal pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), as it is based

on an indisputably meritless legal theory. See Neitzke v. Williams, 

, 325

(1989).