GLD

- 162 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 11

- 1299

___________ DAWN MARIE BALL ,

Appellant

v. C.O. ODEN ; C.O. REED; C.O. P INARD; SGT. RAGAR; C.O. WOLFORD ; C.O. GAIR; LT. HUMMEL; C.O. KEEN; C.O. FOULDS ; SGT. GRINER ; SGT. CAMPBELL ; CAPT. ROBENOLT; LT. GRIDLEY; SGT. WINDER; LT. BLESSING; LT. S ISLEY; TROY EDWARDS; EI SWERTH; C.O. SMITH; DEPUTY SMITH ; LT. CRAVER; D. MILLER; REEDING; T. PETERSON; KOLENO; KOPSHINA; CIPHAM; SUPT. LAMAS; SE CY. BEARD; C.O. AIKEY; C.O. ECKROTH; C.O

NOLTE; C.O. BAKER; LT. BARTO

____________________________________ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil No. 09

- cv
- 0 0847) District Judge: Honorable Yve tte Kane

____________________________________ 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 April 14, 2011 Before: AMBRO, CHAGARES and GREENBERG, Circuit J udges

(Opinion filed : April 28, 2011 )

_________ OPINION

_________2

PER CURIAM

Pro se appellant Dawn Ball app eals the District Court’s order dismissing her complaint. We have jurisdiction under 28 U.S .C. § 1291 and review the order under a plenary standard of rev iew. See Gelman v. State Farm Mut. Auto. Ins. Co. , 583 F.3d 187, 19 0 (3d Cir. 2009). As discussed below, we will affirm in part, vacate in part, and

remand. Ball, who was formerly confined at the State Correctional Institution at Muncy, Pennsylvania, ha s sued over 30 prison employees (collectively, “the Muncy defendants”), as well as Jeffrey Beard, the secretary of the Pennsylvania Department of Corrections, under 42 U.S.C. § 1983. Ball claims that the Muncy defendants wrongly (1) confiscated

and destro yed her personal property, (2) searched her cell, (3) prevented her from accessing the courts, and (4) obstructed her right to send out and receive mail. The District Court dismissed all of Ball’s claims, concluding that she had failed to state a

claim on which relief could be granted. The Court granted Ball permission to amend her complaint as to her access

- to

- the

- courts claim, but Ball did not do so. Therefore, on January 4, 2011, the District Court dismissed Ball’s complaint. Ball then filed a timely notice of appeal. She has also requested that the Court appoint counsel to represent her. We agree with the District Court’s disposition of the majority of Ball’s claims. As an initial matter, t he Eleventh Amendment bars a suit for monetary damages ag ainst state officials sued in their official capacities. See Melo v. Hafer , 912 F.2d 628, 635 (3d Cir. 1990). Therefore, Ball’s claims that seek money damages from the defendants in their3

official capacities fail as a matter of law. Further, although B all has named as defendants Beard and Marirosa Lamas, the superintendent of Muncy , s he has failed to allege that th o se individuals were personally involved in the alleged misconduct. Instead, s he seeks to hold them liable solely on the basis of their supe rvisory positions. See Compl. at 4, 8. However, “ [a] defendant in a civil rights action must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior

. ” Rode v. Dellarciprete , 845

F.2d 1195, 1207 (3d Cir. 1988). Thus, Ball’ s claims against these defendants are not
viable under § 1983. We will also affirm the District Court’s dismissal of Ball’s claims concerning the confiscation or destruction of her property. D eprivation of inmat e property by prison officials does not state a cognizable due process claim if the prisoner has an adequate post

- deprivation state remedy. See Hudson v. Palmer , 468 U.S. 517, 533 (1984)

. Adequate remedies were available here: Ball could have filed a st ate tort action, see id. at 535, or used the prison’s grievance process, s ee Tillman v. Lebanon County Corr

. , 221 F.3d 410, 422 (3d Cir. 2000). Likewise, we discern no error in the District Court’s analysis of Ball’s claim that her prison cell was searc hed without justification. As the Supreme Court has held, “ the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the pr ison cell.” Hudson , 468 U.S. at 526

. Finally, we will affirm the District Court’s orde r dismissing Ball’s access

- to

- the

-4

courts claim. To prevail on such a claim, Ball must show that the denial of access caused actual injury ; for instance, that she was prevented from asserting a “nonfrivolous” and “arguable” claim

. Christopher v. Harbury , 536 U.S. 403, 415 (2002). Ball has failed to plead such an injury. We note also that Ball has been able to litigate numerous other actions during this time period, which further undercuts her claim. See Wilson v. Prasse , 404 F.2d 1380, 1381 (3d Cir. 196 8) (“[T] he many civil actions instituted by appellant in the federal and state courts supported the conclusion of the District Court that the contention that appellant had been denied acc ess to the court was frivolous.” ). While we agree with the analysis i n the District Court’s memorandum, we observe
that the Court did not address Ball’s allegations that the Muncy defendants interfere d

with h er incoming and outgoing mail. A prison’s interference with a prisoner’s mail can, in certain circumstances, violate the prisoner’s First Amendment rights. See, e.g. , Nasir v. Morgan , 350 F.3d 366 , 371 (3d Cir. 2003)

. We will remand for the D istrict C ourt to
determine in the first instance whether t he complaint sufficiently states a First Amendment claim, and if not, whether leave to amend should be provided. Accordingly, w e will affirm the District Court’s order to the extent that it dismissed Ball’s claims (i) for money damages against the defendants in their official capacities, (ii) against Beard and Lamas, (iii) c oncerning the confiscation and destruction of her property, (iv) concerning cell searches, and (v) concerning her access to the courts. We will vacate the order, however, to the extent that it dismissed Ball’s complaint without addressing whether she has stated a First Amendment claim based on the5

defendants’ alleged interference with her mail, and will remand to the District Court for further proceedings consistent with this opinion. We also deny Ball’s request for the appointment of counsel. See Tabron v. Grace , 6 F.3d 147, 155

- 56 (3d Cir. 1993)