Robert C. Weldon v. John Wickiser

BLD-287 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 07-1312
________________
ROBERT C. WELDON,
Appellant
v.
JOHN WICKISER; SUPERINTENDENT JAMES WYNDER; DANIEL ZIELEN,
Lieutenant at SCI Dallas; NORMAN DEMMING, Program Manager at
SCI Dallas; VINCENT MOONEY, Major at SCI Dallas;
GARY GORDON, Unit Manager at SCI Dallas; ROBIN LUCAS, Grievance
Coordinator at SCI Dallas; SHARON M. BURKS, Chief Grievance
Coordinator (Camp Hill)
____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 07-cv-00077)
District Judge: Honorable William W. Caldwell
_______________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
June 28, 2007
Before: MCKEE, FUENTES AND VAN ANTWERPEN, CIRCUIT JUDGES.
(Filed: July 18, 2007)
_______________________
OPINION
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PER CURIAM
Appellant Robert C. Weldon, an inmate at the State Correctional Institution in
Dallas, Pennsylvania, filed a pro se appeal from an order of the United States District
Court for the Middle District of Pennsylvania dismissing his civil rights action under 28
U.S.C. §1915(e)(2)(B)(ii) for failing to state a claim on which relief could be granted.
While his complaint is not a model of clarity, Weldon appears to allege that his
Due Process rights were violated when his thirty-six-dollar watch disappeared while he
was placed in a “P.O.R.” unit and when a prison lieutenant lied during the subsequent
grievance procedure. Weldon claims the prison lieutenant lied when he stated that the
Waymart State Correctional Institution informed him that it could not access any record
of Weldon purchasing a watch there. As proof of this alleged lie, Weldon points to a later
statement in a Pennsylvania Department of Corrections progress report indicating that the
lieutenant determined that Weldon had purchased a watch at the Waymart State
Correctional Institution.
The District Court held that Weldon had failed to state a claim because the
intentional deprivation of property by a state employee does not constitute a violation of
the procedural requirements of the Due Process Clause where a meaningful
postdeprivation remedy for the loss is available. The District Court reasoned that Weldon
had been provided a meaningful postdeprivation remedy in the form of the Pennsylvania
prison grievance system.

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Because Weldon is proceeding in forma pauperis, we must analyze the appeal for
possible dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). Under § 1915(e)(2)(B), we
must dismiss an appeal if the underlying action (i) is frivolous or malicious, (ii) fails to
state a claim upon which relief may be granted, or (iii) seeks monetary damages from a
defendant with immunity. An appeal may be dismissed as frivolous if it has no arguable
basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
In order to establish a 42 U.S.C. §1983 civil rights claim, a claimant must show:
“(1) that the conduct complained of was committed by a person acting under color of state
law; and (2) that the conduct deprived a person of rights, privileges, or immunities
secured by the Constitution or laws of the United States.” Robb v. City of Philadelphia,
733 F.2d 286, 290-91 (3d Cir. 1984) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981)).
We agree with the District Court that Weldon’s Due Process rights were not
violated. Weldon was provided with a meaningful postdeprivation remedy regarding the
loss of his watch in the form of the prison grievance system. See Hudson v. Palmer, 468
U.S. 517, 533 (1984) (“[A]n unauthorized intentional deprivation of property by a state
employee does not constitute a violation of the procedural requirements of the Due
Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for
the loss is available.”); Tillman v. Lebanon County Corr. Facility, 221 F.3d 410, 422 (3d
Cir. 2000) (prison grievance procedure provides an adequate post-deprivation remedy).
Further, Weldon was afforded due process with respect to his allegation that a lieutenant
had lied. Weldon filed a grievance about this claim which was reviewed and denied. In

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any event, we see no contradiction between an earlier statement that the Waymart
commissary could not access a record of a watch purchase, and a later statement that the
lieutenant had determined Weldon purchased a watch at Waymart.
For these reasons, we will dismiss the appeal pursuant to 28 U.S.C. §
1915(e)(2)(B). Weldon’s motion for counsel is denied.
.

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