NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 15-3244

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DWAYNE L. RIECO; 

HERIBERTO RODRIQUEZ

v.

CAROL A. SCIRE, Grievance Coordinator; 

MR. CAPOZZA, Facility Manager

Dwayne L. Rieco,

Appellant

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(W.D. Pa. Civil Action No. 2-13-cv-01360)

District Judge: Honorable Arthur J. Schwab

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

October 18, 2016

Before: GREENAWAY, JR., GREENBERG and ROTH, Circuit Judges

(Opinion filed: January 3, 2017)

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OPINION*

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PER CURIAM

 * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

onstitute binding precedent.
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Dwayne Rieco, a Pennsylvania state prisoner proceeding pro se, appeals an order 

of the United States District Court for the Western District of Pennsylvania dismissing 

his civil rights action. For the reasons that follow, we will affirm the judgment of the 

District Court.

Rieco filed a complaint against Carol Scire, a grievance coordinator at SCIPittsburgh, and Mr. Cappozza, a facility manager at the same institution. Rieco alleged 

that Scire had failed to assign his grievances a grievance tracking number in violation of 

prison policy. He stated that he had submitted nineteen grievances, that Scire had only 

assigned one a grievance number, and that she had told him that she would not process 

those that were in the form of a declaration. Rieco also alleged that grievance numbers 

were assigned to other grievances that he submitted but that grievance procedures were 

violated in other ways. Rieco averred that Cappozza “delayed exhaustion” of his 

remedies by failing to either respond to his appeals or provide a timely response. He 

claimed violations of his rights to access to the courts, due process, and equal protection

based on the defendants' obstruction of the prison’s grievance procedures.

The defendants moved to dismiss the complaint for failure to state a claim upon 

which relief may be granted. They asserted that Rieco's allegations that they violated

prison grievance procedures did not support a constitutional violation. Rieco opposed the 

motion and reiterated that Scire's refusal to process his grievances and assign them a 

number violated his First and Fourteenth Amendment rights.
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The District Court adopted the Magistrate Judge’s report and recommendation to

grant the defendants’ motion to dismiss. The District Court concluded that Rieco failed 

to state an access to the courts claim because he had not alleged that he was prevented 

from litigating a potentially meritorious claim. The District Court also concluded that 

Rieco's allegations that the defendants obstructed the grievance procedures did not state a 

due process claim because inmates do not have a constitutionally-protected right to a 

prison grievance system. The District Court dismissed the complaint with prejudice 

because it appeared that granting Rieco leave to amend his claims would be futile. This 

appeal followed. 

We have jurisdiction pursuant to 28 U.S.C. § 1291. Our standard of review is 

plenary. Newman v. Beard, 617 F.3d 775, 779 (3d Cir. 2010).

We find no error in the District Court’s ruling that Rieco fails to state a due 

process claim as a matter of law based on the defendants’ alleged failure to address his 

grievances or otherwise comply with the prison’s grievance procedures. See Massey v. 

Helman, 259 F.3d 641, 647 (7th Cir. 2001) (collecting cases providing that a prison 

grievance procedure does not confer a constitutionally-protected interest).

We also agree with the District Court that Rieco’s complaint fails to state a First 

Amendment access to the courts claim. Rieco must identify a non-frivolous, arguable

claim that he is unable to bring or has lost as a result of the defendants’ conduct. 

Christopher v. Harbury, 536 U.S. 403, 414-15 (2002). Rieco’s complaint does not 

identify such a claim. The District Court was required to afford Rieco an opportunity to 
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amend his complaint unless allowing amendment would be futile or inequitable. Grayson 

v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). The District Court did not 

allow Rieco to amend his complaint because amendment appeared to be futile. 

Rieco asserted in his objections to the Magistrate Judge’s report, and asserts in his 

brief on appeal, that he submitted a grievance based on the illegal seizure of his legal 

papers, that the grievance was not assigned a number, and that his legal papers were 

needed to pursue a habeas petition asserting his factual innocence in connection with his 

criminal conviction. He states that a habeas petition is now time-barred. Rieco has not

shown that he has a non-frivolous, arguable claim of factual innocence. Moreover, any

inability to file a timely habeas petition was caused by the loss of Rieco’s legal papers, 

not by the defendants’ failure to address his grievance. To the extent Rieco also asserts

that the defendants’ failure to address his grievances has prevented him from exhausting 

his administrative remedies related to his conditions of confinement and bringing a civil 

rights action, Rieco similarly does not sufficiently identify an arguable underlying claim

that has been frustrated. We conclude that the District Court did not err in dismissing 

Rieco’s access to the courts claim without affording him leave to amend his complaint.

Rieco also appears to contend that he should be permitted to amend his complaint 

to state an Eighth Amendment claim against Scire because she was deliberately 

indifferent to, and failed to protect him from, the harm alleged in his grievances, 

including deprivation of food and threats by prison staff. Rieco, however, does not 

contend that Scire knew or should have known of the alleged harm other than from his 
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grievances. He has not shown that he can state an Eighth Amendment claim against 

Scire. See Rode v. Dellarciprete, 845 F.2d 1195, 1208 (3d Cir. 1988) (transmission of 

grievance to state governor’s office is insufficient to show governor’s actual knowledge 

of alleged harm). Finally, to the extent Rieco contends that his right to equal protection 

was violated, he has not stated a claim for relief or shown that amendment of his 

complaint is warranted.

Accordingly, we will affirm the judgment of the District Court.