F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 10 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
LEO SCOTT,
Plaintiff-Appellant, No. 03-1253
v. (D.C. No. 03-Z-721)
CROWLEY COUNTY (D. Colorado)
CORRECTIONAL FACILITY; CCCF
PROPERTY; and CO
HOLLONSWORTH,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before EBEL , HENRY , and HARTZ , Circuit Judges.
Plaintiff pro se Leo Scott is a prisoner in the custody of the Colorado
Department of Corrections. On April 24, 2003, he filed a complaint under 42
U.S.C. § 1983, naming as Defendants the Crowley County Correctional Facility
*
After examining the brief and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
(CCCF), CCCF Property, and CO Hollonsworth. Plaintiff alleged that he was
improperly held in segregation for 65 days at CCCF; that during this time he was
not allowed to possess some of his personal property; and that upon his release
from segregation, he discovered that several items of his personal property were
missing. The district court, ruling that Plaintiff’s claims were legally frivolous,
dismissed his complaint in an order entered May 15, 2003. Plaintiff now appeals
the district court’s decision. We exercise jurisdiction under 28 U.S.C. § 1291 and
affirm.
In dismissing the complaint, the district court relied on 28 U.S.C.
§ 1915(e)(2)(B)(i), which applies to suits filed by prisoners proceeding in forma
pauperis. The provision directs courts to “dismiss [a] case at any time if the court
determines that . . . the action or appeal . . . is frivolous or malicious.” 28 U.S.C.
§ 1915(e)(2)(B)(i). The United States Supreme Court has held that “[b]ecause
the frivolousness determination is a discretionary one, . . . a § 1915(d) dismissal
is properly reviewed for an abuse of that discretion . . . .” Denton v. Hernandez,
504 U.S. 25, 33 (1992). In light of subsequent statutory amendments, this court
has “question[ed] whether abuse of discretion is now the correct standard to
apply” and suggested that “a determination of frivolousness may now be subject
to de novo review . . . .” Basham v. Uphoff, No. 98-8013, 1998 WL 847689, at *4
n.2 (10th Cir. Dec.8, 1998) (unpublished disposition). Here, the distinction
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between the two standards of review is of no consequence, because we would
reach the same result regardless of whether we applied a de novo standard or an
abuse of discretion standard.
According to Plaintiff, officials at CCCF denied him access to some of his
personal property while he was in segregation and then, following his release
from segregation, failed to return to him various items of property worth $149.80,
as well as important legal papers. Although Plaintiff’s complaint had not
specified the constitutional ground on which he was basing this claim, the district
court construed it as a Fourteenth Amendment Due Process claim. The district
court first observed that Plaintiff “does not allege that Defendants intentionally
lost or destroyed his property,” and that his allegations would thus fall short of
supporting a Due Process claim. Dist. Ct. R., Doc. No. 4, at 3. The United States
Supreme Court has held that Due Process “is simply not implicated by a negligent
act of an official causing unintended loss of or injury to life, liberty, or property.”
Daniels v. Williams, 474 U.S. 327, 328 (1986).
Although the district court seemed to read Plaintiff’s complaint as alleging
only unintentional loss, the court did not entirely rely on this assumption in
determining that Plaintiff’s lost-property claim was frivolous. The court stated
that “even assuming the loss of [Plaintiff’s] personal property was intentional, an
unauthorized intentional deprivation of property does not violate due process if an
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adequate postdeprivation remedy for the loss is available.” Dist. Ct. R., Doc. No.
4, at 3 (citing Hudson v. Palmer, 468 U.S. 517, 533 (1984) (“intentional
deprivations [of property] do not violate [the Due Process] Clause provided, of
course, that adequate state post-deprivation remedies are available.”)). Cf.
Gillihan v. Shillinger, 872 F.2d 935, 939-40 (10th Cir. 1989) (“when the
deprivation is not random and unauthorized, but is pursuant to an affirmatively
established or de facto policy, procedure, or custom, the state has the power to
control the deprivation and, therefore, generally must, in the absence of
compelling reasons to the contrary, give the plaintiff a predeprivation hearing.”)
Plaintiff has alleged that the prison officials failed to respond to a grievance he
filed, and this might suggest that the CCCF’s administrative grievance procedure
would not provide an adequate remedy. But Plaintiff has not explained why he
could not bring a state court action seeking damages for the loss of his property,
under a theory of conversion.
Plaintiff also claims that he was improperly held in segregation for 65 days
following his transfer to CCCF from another facility. Treating this claim as
arising under the Due Process Clause, the district court concluded that Plaintiff
had failed to demonstrate that he had been deprived of a protected liberty interest
without due process of law. Under the federal Constitution a prisoner “is not
entitled to a particular degree of liberty in prison.” Templeman v. Gunter, 16 F.3d
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367, 369 (10th Cir. 1994). The Supreme Court has rejected the notion that “any
change in the conditions of confinement having a substantial adverse impact on
the prisoner involved is sufficient to invoke the protections of the Due Process
Clause.” Meachum v. Fano, 427 U.S. 215, 224 (1976).
To be sure, a liberty interest may stem from a source other than federal
constitutional law. “States may under certain circumstances create liberty
interests which are protected by the Due Process Clause.” Sandin v. Conner, 515
U.S. 472, 483-84 (1995). These state-created liberty interests, however, “will be
generally limited to freedom from restraint which, while not exceeding the
sentence in such an unexpected manner as to give rise to protection by the Due
Process Clause of its own force, nonetheless imposes atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at
484 (internal citations omitted). Here, the district court found that Plaintiff had
“not allege[d] facts that amount to an atypical and significant hardship,” and had
not shown “that the length of [his] confinement inevitably will be affected by his
placement in segregation at the [CCCF].” Dist. Ct. R., Doc. No. 4, at 4.
As a final matter, we note that in his Motion for Leave to Proceed on
Appeal without Prepayment of Costs or Fees, Plaintiff refers to having his
“eight[sic], fourteenth, and first amendment [rights] violated].” Motion at 3. The
district court limited its analysis to the Fourteenth Amendment, because Plaintiff
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had not identified a constitutional basis for his claims, and the court “construe[d]
the complaint liberally as asserting due process claims.” Dist. Ct. R., Doc. No. 4,
at 2. We have reviewed Plaintiff’s complaint and have determined that he failed
to develop an Eighth Amendment or First Amendment theory before the district
court. Accordingly, we do not consider those claims. See Tele-Communications,
Inc. v. Comm’r of Internal Revenue, 104 F.3d 1229, 1232 (10th Cir. 1997)
(“Generally, an appellate court will not consider an issue raised for the first time
on appeal.”)
Having considered the brief and record in this case, we conclude that the
district court was correct in dismissing Plaintiff’s complaint as frivolous.
Therefore, for substantially the same reasons set forth in the district court’s order
of May 15, 2003, we AFFIRM the dismissal of Plaintiff’s complaint under 28
U.S.C. § 1915(e)(2)(B)(i). In addition, we note that Plaintiff has applied to
proceed without prepayment of the appellate filing fee. This motion is DENIED,
and Plaintiff is ordered to make immediate payment of the unpaid balance due.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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