ALD-115                                                        NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 12-4046
                                     ___________

                             THOMAS W. THOMPSON,
                                          Appellant

                                           v.

             DAVID W. PITKINS; DANIEL P. BURNS; JOHN S. PAUL;
              TIMOTHY PLEACHER; ELIZABETH NIGHTINGALE;
                     JACK LOUGHRY; DORINA VARNER
                   ____________________________________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                            (D.C. Civil No. 3:12-cv-00166)
                      District Judge: Honorable Kim R. Gibson
                     ____________________________________

        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
                                  February 7, 2013

          Before: SLOVITER, VANASKIE and HARDIMAN, Circuit Judges

                           (Opinion file: February 22, 2013)
                                      _________

                                      OPINION
                                      _________

PER CURIAM

      Thomas W. Thompson, an inmate currently incarcerated at SCI Laurel Highlands

in Somerset, Pennsylvania and proceeding pro se, appeals from an order of the United
States District Court for the Western District of Pennsylvania dismissing his complaint

under 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim. For the reasons discussed

below, we will summarily affirm in part, vacate in part, and remand for further

proceedings. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

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

for our discussion. In 2009, Thompson was transferred from SCI Somerset, a Level

Three prison, to SCI Laurel Highlands, a Level Two prison. In April 2010, he requested

an incentive-based transfer to another Department of Corrections (“DOC”) facility.

Thompson’s request was denied based upon the finding that he had only been housed at a

Level Two facility for five months. He submitted a grievance challenging the denial and

was subsequently placed into a high-intensity violence prevention program. Thompson’s

grievance was denied based upon his refusal to participate in the high-intensity violence

prevention program. He appealed the denial; however, his appeal was returned to him by

the mailroom and ultimately denied as untimely.

       In August 2010, Thompson filed his civil rights complaint pursuant to 42 U.S.C. §

1983 with the District Court. In his complaint, he alleges that Appellees retaliated

against him by denying his transfer request because of his use of the inmate grievance

system. He also asserts that Appellees violated his due process rights by not providing a

fair process under DOC policy to apply for an incentive-based transfer and receive fair

grievance proceedings. On September 5, 2012, a Magistrate Judge recommended

dismissal of Thompson’s suit for failure to state a claim. On September 24, 2012, the



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District Court adopted the recommendation and dismissed Thompson’s complaint

without leave to amend. Thompson 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, 

, 223 (3d Cir. 2000). 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, 

, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 

, 570 (2007)). The complaint “must not be ‘so undeveloped that it does not

provide a defendant the type of notice of claim which is contemplated by [Fed. R. Civ. P.

8].’” Umland v. PLANCO Fin. Servs., Inc., 

, 64 (3d Cir. 2008) (quoting

Phillips v. Cnty. of Allegheny, 

, 233 (3d Cir. 2008)).

       As an initial matter, the District Court correctly dismissed Thompson’s due

process claims. First, Thompson alleged that officials violated his due process rights by

denying him the opportunity to receive an incentive-based transfer. However, prisoners

have no liberty interest arising from the Due Process Clause in a particular place of

confinement. See Olim v. Wakinekona, 

, 245-46 (1983). Thompson has

alleged nothing that might make the denial of his request actionable under the

circumstances presented.

       Second, Thompson alleged that officials violated his due process rights by denying

him a fair process in the adjudication of his various grievances. However, Thompson has

not demonstrated that the process used amounted to an “atypical and significant hardship

. . . in relation to the ordinary incidents of prison life.” Sandin v. Conner, 

,

                                                3
484 (1995); see also Massey v. Helman, 

, 647 (7th Cir. 2001) (noting that

prisoners do not have a constitutional right to prison grievance procedures); Hoover v.

Watson, 

, 418 (D. Del. 1995), aff’d, 

(3d Cir. 1995) (same);

Flick v. Alba, 

, 729 (8th Cir. 1991) (per curiam) (same). Accordingly,

Appellees’ alleged misapplication of these procedures is not independently actionable.

       However, we cannot agree with the District Court that Thompson’s complaint

failed to state “sufficient factual matter” to support the plausibility of his retaliation

claim. 

. In Mitchell v. Horn, 

, 530 (3d Cir. 2003),

we explained that “[a] prisoner alleging retaliation must show (1) constitutionally

protected conduct, (2) an adverse action by prison officials sufficient to deter a person of

ordinary firmness from exercising his constitutional rights, and (3) a causal link between

the exercise of his constitutional rights and the adverse action taken against him.”

Thompson’s allegation that prison officials violated his First Amendment right to present

grievances by denying his petition requesting an incentive-based transfer might state a

claim for retaliation. See Gomez v. Randle, 

, 866-67 (7th Cir. 2012)

(determining that the plaintiff’s complaint was prematurely dismissed because he had

properly asserted a claim for retaliation for alleged violations of his right to use the prison

grievance system).

       Furthermore, while the District Court did not mention the statute of limitations, the

Magistrate Judge noted that Thompson’s retaliation claim was untimely under the

applicable limitations period. Thompson’s claim is governed by 42 Pa. Cons. Stat. Ann.

§ 5524(2), Pennsylvania’s two-year statute of limitations for tort actions. See Ahmed v.

                                               4
Dragovich, 

, 206 (3d Cir. 2002). Because exhaustion of prison

administrative remedies is mandatory under the Prison Litigation Reform Act, the statute

of limitations applicable to § 1983 actions may be tolled while a prisoner exhausts. See

Brown v. Valoff, 

, 942-43 (9th Cir. 2005); Johnson v. Rivera, 

,

522 (7th Cir. 2001); Brown v. Morgan, 

, 596 (6th Cir. 2000). Ordinarily,

the statute of limitations is an affirmative defense which must be pleaded and which is

subject to waiver. See Chainey v. Street, 

, 209 (3d Cir. 2008). Furthermore,

a district court “may not sua sponte dismiss a prisoner’s § 1983 action on the basis of the

statute of limitations unless it is clear from the face of the complaint that there are no

meritorious tolling issues, or the court has provided the plaintiff notice and an

opportunity to be heard.” Vasquez Arroyo v. Starks, 

, 1097 (3d Cir. 2009)

(citing Abbas v. Lt. Dixon, 

, 640 (2d Cir. 2007)).

       It appears that Thompson had the opportunity to respond to the limitations issue

because he addressed it in his objections to the Magistrate Judge’s Report and

Recommendation. However, we note that it is unclear from the face of the complaint

whether the limitations period would bar Thompson’s retaliation claim. Under federal

law, a § 1983 claim accrues “when the plaintiff has a complete and present cause of

action.” Wallace v. Kato, 

, 388 (2007) (citations omitted). Thompson’s

complaint alleges that he completed the grievance process in September 2010.

Furthermore, as noted above, the limitations period may be tolled while Thompson was

exhausting his administrative remedies. See 

; 

; 

. We express no view as to whether Thompson will

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eventually plead a meritorious retaliation claim or whether defenses, such as the statute of

limitations, will prove to be dispositive.

       For the foregoing reasons, we will summarily affirm in part and vacate in part the

District Court’s order dismissing Thompson’s complaint and remand for further

proceedings consistent with this opinion. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.




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