DLD-119 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 18-3032 ___________
JOSHUA BOWENS, Appellant
v.
CO MATTHEWS; CO MATT; CO MARTIN; JOHN/JANE DOES ____________________________________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (E.D. Pa. Civil No. 2-17-cv-04800) District Judge: Honorable Joel H. Slomsky ____________________________________
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 28, 2019
Before: JORDAN, GREENAWAY, JR., and NYGAARD , Circuit Judges
(Opinion filed: April 2, 2019) _________
OPINION * _________
PER CURIAM
Pro se appellant Joshua Bowens, a Pennsylvania state prisoner proceeding in
forma pauperis, appeals from the District Court’s dismissal of a civil rights action he
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. brought pursuant to 42 U.S.C. § 1983. For the reasons that follow, we will summarily
affirm the District Court’s judgment.
I.
Bowens alleged that his civil rights were violated when the defendants, who are
correctional officers at SCI Graterford, lost certain documents that he claims were
necessary for his ongoing postconviction (PCRA) proceedings. Around June 5, 2017,
Bowens was admitted to a psychiatric observation cell, and his property was confiscated
by the defendants. Around June 12, 2017, Bowens returned to the unit where he was
previously assigned, and most of his property was returned to him. However, he
discovered that he was missing certain legal documents, related to his “mental health
illness, defect, condition, treatment and history,” which were considered by the trial judge
who had presided over his sentencing in 2005.
Bowens alleged that he needed these documents in order to support his PCRA
claim that trial counsel was ineffective for failing to investigate his mental health history
and request a competency hearing. He filed an inmate grievance seeking the return of the
documents. The grievance was denied. After that denial, in October 2017, Bowens filed
his civil rights complaint against the defendants.
In December 2017, Defendant Matthews filed a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6). In February 2018, the District Court held a hearing on
the motion. Based on representations from Bowens regarding the allegedly missing
documents, the District Court ordered the defendants to produce two mental health 2 reports which had been ordered by the Court of Common Pleas of Philadelphia County
during Bowens’ criminal trial in state court. In March 2018, Matthews’ counsel filed a
supplement to the motion to dismiss, indicating that she had located a 2004 psychological
reevaluation report from Bowens’ school district and a 2005 mental health evaluation,
both of which were ordered around the time of Bowens’ conviction. Those reports were
provided to the District Court and to Bowens.
Bowens then filed a response in which he stated that those reports were not the
missing documents confiscated from his cell. He did not elaborate further on the
documents that were allegedly missing, or explain what unique information they
contained, in light of the two reports that were provided to him. Nor did he explain how
the information in the missing reports would support his PCRA claim, although he did
allege—in one paragraph in a discovery motion—that a reason given for the denial of his
PCRA petition was his failure to produce those reports.
The District Court granted the motion to dismiss, and dismissed Matthews’
complaint with prejudice. This timely appeal ensued. 1
II.
1 Although Bowens’ timely motion under Federal Rule of Appellate Procedure 4(a)(5) requested an extension of 60 days to file a notice of appeal, the District Court properly granted him only 30 days, and Bowens timely filed his appeal within that extended period. See Fed. R. App. P. 4(a)(5)(C); cf. Hamer v. Neighborhood Hous. Servs. of Chicago, 138 S.Ct. 13, 17 (2017). On the same day that Bowens filed his notice of appeal, he also filed a motion for reconsideration under Federal Rule of Civil Procedure 60(b). His notice of appeal here does not encompass the District Court’s subsequent denial of the Rule 60(b) motion, as he did not file a new or amended notice of appeal from the order denying the Rule 60(b) motion. See Fed. R. App. P. 4(a)(4)(B)(ii). 3 We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise
plenary review over a district court’s dismissal under Rule 12(b)(6), W. Penn Allegheny
Health Sys., Inc. v. UPMC, 627 F.3d 85, 97 (3d Cir. 2010), and ask whether the
complaint contained “sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We may summarily affirm a district
court’s decision “on any basis supported by the record” if the appeal fails to present a
substantial question. See Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per
curiam); Third Circuit LAR 27.4 and I.O.P. 10.6.
III.
We agree with the District Court’s determination that Bowens’ primary claim is an
access-to-the-courts claim. Thus, Bowens was required to plead that he suffered an
actual injury, meaning his “efforts to pursue a legal claim” were prejudiced. Oliver v.
Fauver, 118 F.3d 175, 178 (3d Cir. 1997) (quoting Lewis v. Casey, 518 U.S. 343, 351
(1996)). When a plaintiff alleges the loss of an opportunity to present a past legal claim,
the underlying claim must be “nonfrivolous” or “arguable,” and the plaintiff must “have
no other ‘remedy that may be awarded as recompense’ for the lost claim other than in the
present denial of access suit.” Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008) (per
curiam) (citing Christopher v. Harbury, 536 U.S. 403, 415 (2002)). The complaint “must
describe the underlying arguable claim well enough to show that it is ‘more than mere
hope,’ and it must describe the ‘lost remedy.’” Id.
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DLD-119 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 18-3032 ___________
JOSHUA BOWENS, Appellant
v.
CO MATTHEWS; CO MATT; CO MARTIN; JOHN/JANE DOES ____________________________________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (E.D. Pa. Civil No. 2-17-cv-04800) District Judge: Honorable Joel H. Slomsky ____________________________________
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 28, 2019
Before: JORDAN, GREENAWAY, JR., and NYGAARD , Circuit Judges
(Opinion filed: April 2, 2019) _________
OPINION * _________
PER CURIAM
Pro se appellant Joshua Bowens, a Pennsylvania state prisoner proceeding in
forma pauperis, appeals from the District Court’s dismissal of a civil rights action he
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. brought pursuant to 42 U.S.C. § 1983. For the reasons that follow, we will summarily
affirm the District Court’s judgment.
I.
Bowens alleged that his civil rights were violated when the defendants, who are
correctional officers at SCI Graterford, lost certain documents that he claims were
necessary for his ongoing postconviction (PCRA) proceedings. Around June 5, 2017,
Bowens was admitted to a psychiatric observation cell, and his property was confiscated
by the defendants. Around June 12, 2017, Bowens returned to the unit where he was
previously assigned, and most of his property was returned to him. However, he
discovered that he was missing certain legal documents, related to his “mental health
illness, defect, condition, treatment and history,” which were considered by the trial judge
who had presided over his sentencing in 2005.
Bowens alleged that he needed these documents in order to support his PCRA
claim that trial counsel was ineffective for failing to investigate his mental health history
and request a competency hearing. He filed an inmate grievance seeking the return of the
documents. The grievance was denied. After that denial, in October 2017, Bowens filed
his civil rights complaint against the defendants.
In December 2017, Defendant Matthews filed a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6). In February 2018, the District Court held a hearing on
the motion. Based on representations from Bowens regarding the allegedly missing
documents, the District Court ordered the defendants to produce two mental health 2 reports which had been ordered by the Court of Common Pleas of Philadelphia County
during Bowens’ criminal trial in state court. In March 2018, Matthews’ counsel filed a
supplement to the motion to dismiss, indicating that she had located a 2004 psychological
reevaluation report from Bowens’ school district and a 2005 mental health evaluation,
both of which were ordered around the time of Bowens’ conviction. Those reports were
provided to the District Court and to Bowens.
Bowens then filed a response in which he stated that those reports were not the
missing documents confiscated from his cell. He did not elaborate further on the
documents that were allegedly missing, or explain what unique information they
contained, in light of the two reports that were provided to him. Nor did he explain how
the information in the missing reports would support his PCRA claim, although he did
allege—in one paragraph in a discovery motion—that a reason given for the denial of his
PCRA petition was his failure to produce those reports.
The District Court granted the motion to dismiss, and dismissed Matthews’
complaint with prejudice. This timely appeal ensued. 1
II.
1 Although Bowens’ timely motion under Federal Rule of Appellate Procedure 4(a)(5) requested an extension of 60 days to file a notice of appeal, the District Court properly granted him only 30 days, and Bowens timely filed his appeal within that extended period. See Fed. R. App. P. 4(a)(5)(C); cf. Hamer v. Neighborhood Hous. Servs. of Chicago, 138 S.Ct. 13, 17 (2017). On the same day that Bowens filed his notice of appeal, he also filed a motion for reconsideration under Federal Rule of Civil Procedure 60(b). His notice of appeal here does not encompass the District Court’s subsequent denial of the Rule 60(b) motion, as he did not file a new or amended notice of appeal from the order denying the Rule 60(b) motion. See Fed. R. App. P. 4(a)(4)(B)(ii). 3 We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise
plenary review over a district court’s dismissal under Rule 12(b)(6), W. Penn Allegheny
Health Sys., Inc. v. UPMC, 627 F.3d 85, 97 (3d Cir. 2010), and ask whether the
complaint contained “sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We may summarily affirm a district
court’s decision “on any basis supported by the record” if the appeal fails to present a
substantial question. See Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per
curiam); Third Circuit LAR 27.4 and I.O.P. 10.6.
III.
We agree with the District Court’s determination that Bowens’ primary claim is an
access-to-the-courts claim. Thus, Bowens was required to plead that he suffered an
actual injury, meaning his “efforts to pursue a legal claim” were prejudiced. Oliver v.
Fauver, 118 F.3d 175, 178 (3d Cir. 1997) (quoting Lewis v. Casey, 518 U.S. 343, 351
(1996)). When a plaintiff alleges the loss of an opportunity to present a past legal claim,
the underlying claim must be “nonfrivolous” or “arguable,” and the plaintiff must “have
no other ‘remedy that may be awarded as recompense’ for the lost claim other than in the
present denial of access suit.” Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008) (per
curiam) (citing Christopher v. Harbury, 536 U.S. 403, 415 (2002)). The complaint “must
describe the underlying arguable claim well enough to show that it is ‘more than mere
hope,’ and it must describe the ‘lost remedy.’” Id. at 205-06 (citing Christopher at 416- 4 17).
Here, Bowens failed to allege a plausible access-to-the-courts claim. His
complaint made only conclusory allegations that the unavailability of two mental health
reports caused the denial of his PCRA petition. To the extent that Bowens described his
PCRA claim at all, he did not describe it well enough to show that it is “nonfrivolous” or
“arguable.” Monroe, 536 F.3d at 205. Even if it were arguable, he did not allege any
prejudice from the defendants’ actions, as he failed to allege what specific information
the confiscated mental health reports would have provided to support his PCRA claim.
Moreover, we note that Bowens’ PCRA petition was denied in September 2016, and his
appeal was pending until May 2018, when the Superior Court affirmed. See Com. v.
Bowen, No. 3159 EDA 2016, 2018 WL 2295672 at *2 (Pa. Super. 2018). 2 Bowens
alleged that he had the two missing reports in his possession until June 5, 2017. Thus, his
allegation that his PCRA claim was prejudiced by the defendants’ confiscation of the
reports is not plausible, as Bowens failed to submit the reports well before the defendants
had confiscated them. See Oliver, 118 F.3d at 178.
Bowens’ Due Process claims lack merit. Neither the negligent nor even the
unauthorized, intentional deprivation of property by a state employee gives rise to a due
process violation if state law provides an adequate post-deprivation remedy. Hudson v.
Palmer, 468 U.S. 517, 533 (1984). Bowens had, and pursued, adequate post-deprivation
2 To the extent necessary, we take judicial notice of these facts. See Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). 5 remedies in the form of prison grievance procedures. See Tillman v. Lebanon Cty. Corr.
Facility, 221 F.3d 410, 422 (3d Cir. 2000). 3 To the extent that Bowens claimed that his
grievances were wrongfully denied, he has not alleged the denial of a federal right. See
Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (“A state-created prison grievance
procedure is simply a procedural right and does not confer any substantive right upon an
inmate.”); see also Woods v. City of Michigan City, Ind., 940 F.2d 275, 285 (7th Cir.
1991) (“Due process does not guarantee ‘right’ substantive outcomes or correct
conclusions of law.”). To the extent that Bowens raised a substantive due process claim,
he failed to allege that the defendants’ confiscation of his papers shocks the conscience.
See Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008).
Bowens’ remaining claims also lack merit. His single, bald assertion that the
defendants were deliberately indifferent to his serious mental health needs, and failed to
protect him from harm, is insufficient to state an Eighth Amendment claim. See
generally Pearson v. Prison Health Serv., 850 F.3d 526, 535 (3d Cir. 2017). To the extent
that his Eighth Amendment claim is based on the confiscation of his mental health
reports, the claim fails because Bowens did not plausibly allege that the confiscation
“result[ed] in the denial of the minimal civilized measure of life’s necessities.” See Betts
v. New Castle Youth Dev. Ctr., 621 F.3d 249, 256 (3d Cir. 2010) (quotation marks and
citations omitted). Finally, Bowens has not alleged the violation of any specific
3 Additionally, Bowens may submit a records request to obtain documents issued or retained by the state, see 65 Pa. Stat. §§ 67.301 et seq., and may pursue state tort law claims. 6 fundamental right that might be protected by the Ninth Amendment. See Murray, 650
F.3d at 247 (citing Griswold v. Connecticut, 381 U.S. 479, 493 (1965) (Goldberg, J.,
concurring)). 4
Accordingly, we will summarily affirm the judgment of the District Court.
Bowens’ motion for appointment of counsel is denied. See generally Tabron v. Grace, 6
F.3d 147, 155 (3d Cir. 1993). Bowens’ motion to supplement the record is denied. See
generally Burton v. Teleflex Inc., 707 F.3d 417, 435 (3d Cir. 2013). 5
4 Under the circumstances of this case, the District Court properly denied leave to amend. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). 5 Bowens’ motion to supplement the record includes an unsigned prison form regarding the return of his property. Because we have accepted as true Bowens’ allegation that the defendants never returned the property at issue, see Iqbal, 556 U.S. at 678, the prison form would not change our analysis above. 7