DLD-288 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-2240

___________

DWAYNE HENRY,

Appellant

v.

HEATHER MOORE, SCI Houtzdale Mailroom Supervisor;

JOHN DOE #1 Mailroom Inspector #3;

JOHN DOE #2 Mailroom Inspector #4

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 3-11-cv-00017)

District Judge: Honorable Kim R. Gibson

____________________________________

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

September 20, 2012

Before: AMBRO, JORDAN and VANASKIE, Circuit Judges

(Opinion filed: October 3, 2012)

_________

OPINION

_________

PER CURIAM

Dwayne Henry, an inmate currently incarcerated at SCI Graterford in Graterford, 

Pennsylvania, appeals from an order of the United States District Court for the Western

District of Pennsylvania dismissing his pro se civil rights action brought pursuant to 42 
2

U.S.C. § 1983. Because this appeal does not present a substantial question, we will 

summarily affirm the District Court’s order. See

Because we write for the parties, we need only recite the facts necessary for our 

discussion. At the time Henry filed his complaint, he was incarcerated at SCI Houtzdale 

in Houtzdale, Pennsylvania. In his submissions to the District Court, Henry alleges that 

employees at SCI Houtzdale intentionally interfered with his access to the courts by 

failing to timely provide pieces of legal mail notifying him that the District Court had 

dismissed his complaint filed in 

3d Cir. L.A.R 27.4; I.O.P. 10.6.

Henry v. Britton (W.D. Pa. Civ No. 3:10-cv-204) for 

failure to state a claim, and that criminal charges had been filed against him in state court. 

Henry asserts that because he did not timely receive this mail, he was unable to obtain an 

attorney or present sufficient evidence for his preliminary hearing, and was unable to 

appeal the dismissal of his complaint in Henry v. Britton

In 2011, Henry filed this civil rights action against SCI Houtzdale mailroom 

supervisor Heather Moore and John Does #1 and #2. A Magistrate Judge recommended 

that Henry’s complaint be dismissed, and Henry filed objections to this recommendation 

and a motion for leave to amend his complaint. The Magistrate Judge granted this 

motion and Henry filed his amendment on April 27, 2011. Moore filed a motion to 

dismiss, alleging that Henry could not demonstrate any actual injury caused by the delay 

of his receipt of his legal mail. Henry then filed another motion for leave to amend his 

complaint. On March 7, 2012, the Magistrate Judge recommended that Moore’s motion 

to dismiss be granted and denied Henry’s motion to amend. On March 27, 2012, the

.
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District Court entered an order adopting the Magistrate Judge’s recommendation and 

dismissed Henry’s complaint for failure to state a claim without providing him leave to 

amend. Henry then timely filed this appeal.

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and exercise 

plenary review over the District Court’s dismissal order. See Allah v. Seiverling, 229 

F.3d 220, 223 (3d Cir. 2000). This Court affirms a dismissal of a complaint for failure to 

state a claim if we can “say with assurance that under the allegations of the pro se 

complaint, which we hold to less stringent standards than formal pleadings drafted by 

lawyers, it appears ‘beyond doubt that the plaintiff can prove no set of facts in support of 

his claim which would entitle him to relief.’” McDowell v. Del. State Police, 88 F.3d 

188, 189 (3d Cir. 1996) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). We may 

affirm the District Court on any basis supported by the record.1

 Brightwell v. Lehman

Prisoners have a right of access to the courts. 

, 

637 F.3d 187, 191 (3d Cir. 2011) (citations omitted).

Bounds v. Smith, 430 U.S. 817, 821 

(1977); see also Lewis v. Casey

 1 We note that the District Court did not provide Henry leave to amend his 

complaint a second time before dismissing his claims. Ordinarily, a District Court should 

not dismiss a pro se complaint without granting leave to amend, unless such “amendment 

would be inequitable or futile.” Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d 

Cir. 2002). Amendment would be futile because, as discussed below, Henry’s underlying 

claims lack merit, and we conclude that the District Court did not err in declining to 

allow Henry a second opportunity to amend his complaint.

, 518 U.S. 343, 350 (1996). To establish a cognizable 

claim, a prisoner must demonstrate that he has suffered an actual injury to his ability to 
4

present a claim. Lewis, 518 U.S. at 352-54. A prisoner can show an actual injury only 

when a nonfrivolous, arguable claim is lost. Christopher v. Harbury, 536 U.S. 403, 415 

(2002); see also Monroe v. Beard, 536 F.3d 198, 205-06 (3d Cir. 2008) (noting that the 

complainant “must describe the underlying arguable claim well enough to show that it is 

‘more than mere hope’”). Moreover, the claim must relate to either a direct or collateral 

challenge to the prisoner’s sentence or conditions of confinement. Lewis, 518 U.S. at 

355 (“Impairment of any other litigating capacity is simply one of the incidental . . . 

consequences of conviction and incarceration.”). Furthermore, a prisoner must 

demonstrate that no other remedy will potentially compensate for the lost claim. Monroe

The District Court properly dismissed Henry’s complaint. First, the District Court 

correctly determined that Henry could not demonstrate actual harm by his delayed receipt 

of notice of the dismissal of his complaint in 

, 

536 F.3d at 205.

Henry v. Britton because Henry himself 

never filed a motion to either extend the time or reopen the time to file an appeal. The

District Court also properly noted that in Henry v. Britton Henry had failed to state a 

claim regarding either the altercation leading to his confinement in the RHU or the 

rejection of his administrative grievances.

2 See Sandin v. Conner, 515 U.S. 472, 484-85 

(1995); Smith v. Mensinger, 293 F.3d 641, 653-54 (3d Cir. 2002); Hoover v. Watson

 2 This information was taken from the Magistrate Judge’s Report and 

Recommendation filed in Henry v. Britton (W.D. Pa. Civ No. 3:10-cv-204, Docket #2.) 

We note that although this case is not before us on appeal, it relates to Henry’s 

allegations that he was denied access to the courts.

, 
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886 F. Supp. 410, 418 (D. Del. 1995), aff’d, 74 F.3d 1226 (3d Cir. 1995). Therefore, he 

cannot claim that he was barred from pursuing a nonfrivolous, arguable claim by 

untimely receipt of the notice of dismissal. See Christopher, 536 U.S. at 415; Monroe

Furthermore, the District Court properly dismissed Henry’s complaint because his 

claims surrounding his preliminary hearing on state charges do not relate to a direct or 

collateral challenge to his sentence or conditions of confinement; instead, they relate to 

his allegedly impaired ability to effectively litigate at his preliminary hearing on separate 

charges. 

, 

536 F.3d at 205-06.

See Lewis, 518 U.S. at 349. As the Magistrate Judge’s Report and 

Recommendation correctly noted, Henry cannot claim that these consequences caused 

him actual injury because he would have remained incarcerated regardless of the outcome 

of the preliminary hearing. Finally, the District Court properly determined that, at the 

time of dismissal, Henry’s claim that failure to receive timely notice of his state charges 

led to an unconstitutional prosecution was premature. See Heck v. Humphrey

For the foregoing reasons, no substantial question is presented and we will affirm 

the judgment of the District Court. 

, 512 U.S. 

477, 486-87 (1994).

See 3d Cir. L.A.R 27.4; I.O.P. 10.6.