Antonio Alexander v. Sally A. Gennarini

CPS-236 NOT PRECEDENTIAL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

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Inasmuch as we are writing only for the parties, we need not set forth the factual and1
procedural background of this matter, except as it may be helpful to our discussion.
Although a dismissal without prejudice is ordinarily not appealable, such dismissals2
pursuant to § 1915 are appealable. See Deutsch v. United States, 67 F.3d 1080, 1083 (3d Cir.
1985).
2
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. Alexander sought injunctive1
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, 318 F.3d 523, 530 (3d Cir. 2003); Allah v. Seiverling, 229 F.3d 220,
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, 504 U.S.
25, 32 (1992); Nami v. Fauver, 82 F.3d 63, 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,

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3
989 F.2d 117, 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, 845 F.2d 1195, 1207-08 (3d Cir. 1988). Section 1983 liability
cannot be found solely on the basis of respondeat superior. See id. The District 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, 451 U.S. 527, 542 (1981) overruled
on other grounds by 474 U.S. 327 (1986); Hudson v. Palmer, 468 U.S. 517, 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, 221 F.3d 410, 422 (3d Cir. 2000). Alexander could also
have filed a state tort suit for conversion of property. See Hudson, 468 U.S. at 535.
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

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construed, we attempt to glean his arguments from the complaint. See Haines v. Kerner,
404 U.S. 519, 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, 416 U.S. 396, 418 (1974), overruled on other
grounds, 490 U.S. 401 (1989). However, a single instance of damaged or withheld mail
does not constitute a First Amendment violation. See Bieregu v. Reno, 59 F.3d 1445,
1452 (3d. Cir. 1995), overruled on other grounds, 518 U.S. 343 (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, 490 U.S. 319, 325
(1989).

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