ALD-055 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 23-2054
___________
CHRISTOPHER F. MBEWE
Appellant
v.
THERESA DELBALSO, Former Superintendent; MICHAEL J. DUNKLE; C.O.
CRAWFORD; CHAPMAN, C.O.; & LT. WALL
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 4:21-cv-00654)
District Judge: Honorable Matthew W. Brann
____________________________________
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
January 18, 2024
Before: HARDIMAN, MONTGOMERY-REEVES, and NYGAARD, Circuit Judges
(Opinion filed: February 9, 2024)
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OPINION *
_________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Plaintiff Christopher Mbewe appeals pro se and in forma pauperis from the
District Court’s order dismissing his third amended complaint. 1 We will summarily
affirm.
Mbewe is incarcerated at the State Correctional Institution, Mahanoy (SCI
Mahanoy). Mbewe claimed that the SCI Mahanoy officials committed constitutional
violations in their handling of his legal mail on six occasions between December 2019
and July 2021. He averred that prison officials fabricated evidence that his legal mail
tested positive for drugs to unlawfully open and read the mail outside of his presence, and
that the prison officials wrongfully confiscated legal mail that was critical to his state
post-conviction proceedings. Mbewe also broadly asserted that there is an ongoing
pattern and practice at SCI Mahanoy of prison officials interfering with legal mail or
tacitly condoning such interference.
The District Court dismissed the third amended complaint with prejudice for
failure to state a claim. Mbewe sought reconsideration of the dismissal, which the District
Court denied. This appeal followed.
1
Mbewe filed his initial complaint in April 2021. He amended that complaint twice. The
District Court dismissed the second amended complaint and provided Mbewe a limited
opportunity to file a third amended complaint. The third amended complaint is
substantially similar to the second amended complaint but attached additional exhibits.
DCT No. 69.
2
We have jurisdiction pursuant to 28 U.S.C. § 1291 and exercise plenary review
over the District Court’s dismissal of Mbewe’s third amended complaint. See Newark
Cab Ass’n v. City of Newark, 901 F.3d 146, 151 (3d Cir. 2018). We construe Mbewe’s
pro se complaint liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam).
We may summarily affirm the District Court’s judgment if the appeal presents no
substantial question, see 3d Cir. L.A.R. 27.4 and I.O.P. 10.6, and must dismiss the appeal
under 28 U.S.C. § 1915(e)(2)(B)(i) if it is frivolous.
To state a claim under 42 U.S.C. § 1983, “a plaintiff must allege the violation of a
right secured by the Constitution and laws of the United States, and must show that the
alleged deprivation was committed by a person acting under color of state law.” West v.
Atkins, 487 U.S. 42, 48 (1988). Like the District Court, we construe the third amended
complaint to assert claims of (1) First and Fourteenth Amendment denial of access to the
courts; (2) First Amendment interference with legal correspondence in violation of free-
speech rights; and (3) Fourteenth Amendment deprivation of property without due
process of law. Upon careful consideration, we agree with the District Court’s assessment
of the third amended complaint.
A. Denial of Access to the Courts
Mbewe avers that his sister was contacted in April 2019 by an individual who
claimed to witness the crime for which Mbewe was convicted. This witness informed
Mbewe’s sister that she would have testified that Mbewe was innocent, but that she did
3
not come forward earlier due to instructions provided by the prosecuting attorney.
According to Mbewe, the witness mailed a written witness statement directly to Mbewe,
but the mail was intercepted, opened, and destroyed by prison officials. Mbewe claims, as
a result, that he was unable to timely file a Post-Conviction Relief Act (PCRA) petition in
relation to this evidence,
Where, as here, a prisoner asserts that prison officials’ actions have inhibited his
opportunity to present a collateral challenge to a conviction, the prisoner must show (1)
“an ‘actual injury’—that they lost a chance to pursue a ‘nonfrivolous’ or ‘arguable’
underlying claim”; and (2) the absence of any other remedy for the lost claim than in the
present denial of access suit. Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008). In
addition, “[t[he complaint must describe the underlying arguable claim well enough to
show that it is ‘more than mere hope,’ and it must describe the ‘lost remedy.’” Id. at 205-
06 (internal quotation marks and citation omitted)). We agree with the District Court that
Mbewe failed to plausibly allege these elements.
We reiterate the District Court’s belief that Mbewe failed to plausibly demonstrate
that the purported interference with this mail prevented him from seeking PCRA relief or
otherwise caused such a lengthy delay as to elapse the entirety of the limitations period to
file a PCRA petition or seek an exception to the same. Nevertheless, if we assume the
truth of Mbewe’s assertion that the claimed mail interference caused his failure to timely
file a PCRA petition, it cannot be said that Mbewe adequately described the “lost
4
remedy.” See 42 Pa. Cons. Stat. Ann. § 9545(b)(1)(i) (excepting claims not previously
raised as a result of government interference from the PCRA one-year limitations period).
And Mbewe has otherwise failed to assert any actual injury caused by the purported mail
interference. Indeed, Mbewe’s third amended complaint lacks any factual averment
indicating that he sought and was denied relief—either through state PCRA proceedings
or federal habeas—based on the purportedly new evidence.
Further, as the District Court pointed out, Mbewe’s third amended complaint
failed to identify any specific conduct or personal involvement in the alleged wrongdoing
by any Defendant. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (noting
that a plaintiff must allege that the defendants had “personal involvement in the alleged
wrongs,” which can be shown through “allegations of personal direction or of actual
knowledge and acquiescence” to state a claim under § 1983).
B. Interference with Legal Correspondence
Mbewe alleges that privileged and confidential legal mail was sent to him on six
occasions between December 2019 and July 2021. He claims that prison officials seized,
opened, and copied his legal mail outside of his presence and in violation of his First
Amendment free-speech rights. Mbewe identifies the at-issue mail as having been sent by
an attorney with the Pennsylvania Innocence Project (Delose), an attorney from the
Lewisburg Prison Project (Su Ming Yeh), and Defendants’ attorney (DiTomo). Mbewe
also asserts that, during the relevant time frame and to protect his rights, he mailed over
5
200 letters to organizations and agencies, but any answers received were intercepted,
copied, and destroyed by Defendants.
“Although the [Department of Corrections (DOC)] prohibits mail inspectors from
reading mail addressed to inmates except in special circumstances, constitutional
obligations require the DOC to take additional measures to ensure that legal mail remains
unread.” Fontroy v. Beard, 559 F.3d 173, 174 (3d Cir. 2009). As such, this Court has held
that a DOC policy that allows the opening of legal mail without the physical presence of
addressee inmates “deprives the expression of confidentiality and chills the inmates’
protected expression.” Jones v. Brown, 461 F.3d 353, 359 (3d Cir. 2006). However, the
fact that mail is from an attorney or a legal non-profit, even when that mail may include
confidential or privileged information, does not on its own require prison officials to label
it as legal mail that may only be opened in the presence of inmates. 2 See Fontroy, 559
F.3d at 175-77, 184; see also Bieregu v. Reno, 59 F.3d 1445, 1452, 1458 (3d Cir. 1995)
(holding that evidence of five instances of mail tampering, three of which the defendants
admitted, was enough to raise a genuine issue of material fact on whether there was an
unconstitutional “pattern and practice” of opening the plaintiff’s properly marked court
2
DOC has instituted a policy that requires the identification of an attorney or court
“control number” on a mailing envelope for that mail to be considered legal
correspondence that must be opened in the presence of an inmate. This Court has
previously rejected a challenge to the constitutionality of that policy, see Fontroy, 559
F.3d at 183-84.
6
mail, but noting that “a single, inadvertent opening of properly marked legal mail outside
an inmate’s presence . . . may not infringe a prisoner’s right to free speech”), abrogated
on other grounds by Lewis v. Casey, 518 U.S. 343 (1996).
Here, Mbewe has not plausibly claimed that the mail at issue was legal mail that
cannot be opened outside of his presence. Mbewe does not aver the existence of an
attorney-client relationship between Mbewe and Delose or Su Ming Yeh, and it appears
that none existed. And, certainly, any mail sent to Mbewe from opposing counsel, while
legal in nature, is not privileged by virtue of an attorney-client relationship and does not
constitute legal mail for purposes of a First Amendment free-speech claim. More
importantly, Mbewe’s third amended complaint is devoid of any claim that the purported
legal mail was properly marked with an attorney control number in compliance with
DOC policy. See Fontroy, 559 F.3d at 175-77, 183-84. Accordingly, we agree that
Mbewe has failed to plausibly aver that prison officials, at any point, opened his legal
mail outside of his presence or otherwise implicated the First Amendment.
C. Deprivation of Property
To the extent Mbewe claims that prison officials wrongfully confiscated his mail
and other correspondence in violation of the Fourteenth Amendment, the District Court
correctly dismissed any such claims. See Hudson v. Palmer, 468 U.S. 517, 533 (1984)
(holding that negligent and intentional deprivations of property do not violate due process
if meaningful post-deprivation remedies are available). The prison grievance procedure
7
provides an adequate post-deprivation remedy, see, e.g., Tillman v. Lebanon Cnty. Corr.
Facility, 221 F.3d 410, 422 (3d Cir. 2000), and the existence of this post-deprivation
remedy forecloses Mbewe due process deprivation of property claim. 3 Mbewe can also
pursue common law remedies for any purported wrongful deprivation of his property.
For the foregoing reasons, the District Court did not err in dismissing Mbewe’s
third amended complaint with prejudice. Further amendment would be futile as Mbewe
has already had multiple opportunities to amend his pleadings. Moreover, we discern no
error in the District Court’s denial of Mbewe’s motion to reconsider its dismissal of the
third amended complaint.
Accordingly, the appeal does not present a substantial question. We will
summarily affirm the District Court’s order. See 3d Cir. L.A.R. 27.4 (2011); 3d Cir.
I.O.P. 10.6 (2018). To the extent Mbewe has requested appointment of appellate counsel,
that motion is denied.
3
Indeed, Mbewe indicated in his third amended complaint that he availed himself of the
grievance procedure to challenge the alleged confiscation of his property.
8