Carr v. Zwally

FILED
United States Court of Appeals
Tenth Circuit

January 8, 2019
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court

HESHIMO YAPHET CARR,

Plaintiff - Appellant,

v. No. 18-1197
(D.C. No. 1:18-CV-00073-LTB)
THOMAS ZWALLY; EL PASO (D. Colo.)
COUNTY, COLORADO,

Defendants - Appellees.

ORDER AND JUDGMENT *

Before HOLMES, MATHESON, and EID, Circuit Judges.

Plaintiff-Appellant Heshimo Yaphet Carr filed an action pursuant to 42

U.S.C. § 1983 alleging that Defendants-Appellees Thomas Zwally 1 and El Paso

County, Colorado violated multiple constitutional rights by discarding personal

*
After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist in the
determination of this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . 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judgment is not binding precedent, except under the doctrines of law of the case,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. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
Although the second amended complaint (i.e., the operative one here)
spells this Defendant-Appellee’s surname as “Zwalley,” R. at 76 (Prisoner
Compl., filed Mar. 26, 2018), we use the “Zwally” spelling found in Defendants-
Appellees’ briefing.
property that Mr. Carr kept in his jail cell. The district court dismissed the case

as legally frivolous pursuant to 28 U.S.C. § 1915A(b). Exercising jurisdiction

under 28 U.S.C. § 1291, we conclude Mr. Carr has failed to plausibly allege

constitutional violations against either Mr. Zwally or El Paso County. We thus

affirm the judgment of the district court. We also deny Mr. Carr’s motion to

proceed in forma pauperis on appeal and impose a “strike” under 28 U.S.C. §

1915(g).

I

A

Mr. Zwally worked as an El Paso County sheriff’s deputy at the county

jail. 2 While Mr. Carr was incarcerated at this jail, Mr. Zwally allegedly entered

Mr. Carr’s cell and “removed [his] pro-se inmate legal material” and “all [his]

religious material,” including “2 Holy Bibles.” R. at 79. The removed legal

material included “case laws” along with “months[’] worth of important pro-se

legal work and materials and [attorney] correspondence.” Id. at 79, 82. Further,

removal of these materials allegedly “forced [Mr. Carr] to abort trial preparation

2
These allegations come from Mr. Carr’s second amended complaint,
the operative complaint. R. at 76–85. While Mr. Carr asks us to review the prior
iterations of his complaint, we decline to do so. “[I]t is well established that an
amended complaint ordinarily supersedes the original and renders it of no legal
effect.” Davis v. TXO Prod. Corp., 929 F.2d 1515, 1517 (10th Cir. 1991)
(quoting Int’l Controls Corp. v. Vesco, 556 F.2d 665 (2d Cir. 1977)). In our
analysis (i.e., Parts III and IV), occasional shorthand references to “the
complaint” relate solely to the second amended complaint.

2
and take [a] plea bargain” in an unspecified criminal case. Id. at 84. The removal

of the religious materials allegedly “prevent[ed] [Mr. Carr] from practicing [his]

religion,” id. at 79, and “worship[ping],” id. at 82.

Cameras in the facility allegedly recorded Mr. Zwally “discarding [the]

inmate property into [a] waste bin.” Id. at 79; see also id. at 82–83. Mr. Carr

alleges that Mr. Zwally acted “knowingly,” “oppressively,” “abusively,”

“purposely,” and “vindictively” in discarding the property. Id. at 82, 84. Two

other officers allegedly “researched” the matter, but “were unable to locate any of

the items.” Id. at 79.

B

Mr. Carr filed a § 1983 complaint in state court, which the defendants

removed to federal court. Upon removal, the presiding federal magistrate judge

reviewed the complaint pursuant to 28 U.S.C. § 1915A, ruled that it failed to state

a claim, and directed Mr. Carr to file an amended complaint. Mr. Carr objected to

the order and moved for the magistrate judge to recuse himself. The district court

overruled the objection to the magistrate judge’s order and allowed the magistrate

judge to address the recusal motion in the first instance. The magistrate judge

denied the recusal motion. Mr. Carr filed an amended complaint, which the

magistrate judge again rejected. The magistrate judge ordered Mr. Carr to file a

second amended complaint, which Mr. Carr then did.

The district court reviewed the second amended complaint and found that it

3
too failed to state a plausible claim. The court first opined that Mr. Carr had

failed to allege facts concerning El Paso County’s involvement in any alleged

violation, and so dismissed the claims against it. The court then construed the

remainder of the complaint as asserting that Mr. Zwally violated Mr. Carr’s rights

under the First Amendment’s Free Exercise Clause, the Fourteenth Amendment’s

Due Process Clause, and the Constitution’s guarantee of access to the courts. 3

The court concluded that Mr. Carr had failed to allege arguable violations under

these three theories and dismissed the complaint as legally frivolous pursuant to

28 U.S.C. § 1915A(b). The court also certified pursuant to 28 U.S.C.

§ 1915(a)(3) that any appeal would not be taken in good faith and thus denied in

forma pauperis status for purposes of appeal. Mr. Carr timely appealed, and he

now seeks reversal of the district court’s decision and to proceed in forma

pauperis.

II

“[A] complaint, containing as it does both factual allegations and legal

conclusions, is frivolous where it lacks an arguable basis either in law or in fact.”

Neitzke v. Williams, 490 U.S. 319, 325 (1989). “This court reviews frivolousness

3
See Christopher v. Harbury, 536 U.S. 403, 415 (2002) (describing
“the basis of the constitutional right of access to courts” as “unsettled”); id. at
415 n.12 (collecting cases attributing the right to Article IV’s Privileges and
Immunities Clause, the First Amendment, the Fifth Amendment, and the
Fourteenth Amendment).

4
dismissals for an abuse of discretion.” Conkle v. Potter, 352 F.3d 1333, 1335 n.4

(10th Cir. 2003). However, when, as here, the district court’s decision turns on “a

legal issue,” “we must review” that decision de novo. Id.; see Young v. Davis,

554 F.3d 1254, 1256 (10th Cir. 2009) (reviewing de novo a dismissal pursuant to

§ 1915A(b) that was based on the legal determination that the prisoner’s

complaint did not state a claim upon which relief could be granted). This is

because “a district court always abuses its discretion when it errs on a legal

question, and we decide the presence or absence of legal error de novo.” El

Encanto, Inc. v. Hatch Chile Co., 825 F.3d 1161, 1162 (10th Cir. 2016).

Thus, we ask whether Mr. Carr’s second amended complaint contains

sufficient facts to “state a claim to relief that is plausible on its face,” taking all

well-pleaded facts, but not conclusory allegations, as true and construing them in

the light most favorable to him. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has

facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id.

Finally, “we must construe a pro se appellant’s complaint liberally,” and

“[d]ismissal of a pro se complaint for failure to state a claim is proper only where

it is obvious that the plaintiff cannot prevail on the facts he has alleged and it

would be futile to give him an opportunity to amend.” Kay v. Bemis, 500 F.3d

5
1214, 1217–18 (10th Cir. 2007) (quoting first Gaines v. Stenseng, 292 F.3d 1222,

1224 (10th Cir. 2002), and then Curley v. Perry, 246 F.3d 1278, 1281 (10th Cir.

2001)). Although we liberally construe Mr. Carr’s pro se complaint, we do not

act as his advocate. See, e.g., Garrett v. Selby Connor Maddux & Janer, 425 F.3d

836, 840 (10th Cir. 2005).

III

Reviewing Mr. Carr’s second amended complaint, we conclude that he has

failed to plausibly allege that either Mr. Zwally or El Paso County violated his

constitutional rights.

A

Mr. Carr starts by arguing that the disposal of his religious materials

violated the First Amendment’s Free Exercise Clause. The Supreme Court has

stated that “[w]here the claim is invidious discrimination in contravention of the

First . . . Amendment[], [its] decisions make clear that the plaintiff must plead and

prove that the defendant acted with discriminatory purpose.” Iqbal, 556 U.S. at

676 (citing Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 540–541

(1993) (plurality op. of Kennedy, J.)). “[P]urposeful discrimination . . . . involves

a decisionmaker’s undertaking a course of action ‘“because of,” not merely “in

spite of,” [the action’s] adverse effects upon an identifiable group.’” Id. at

676–77 (alteration in original) (quoting Personnel Adm’r of Mass. v. Feeney, 442

U.S. 256, 279 (1979)). Thus, to plausibly state a claim of religious

6
discrimination, Mr. Carr “must plead sufficient factual matter to show that” Mr.

Zwally took his Bibles and religious materials “not for a neutral . . . reason but

for the purpose of discriminating on account of . . . religion.” Id. at 677; see also

Pahls v. Thomas, 718 F.3d 1210, 1230 n.8 (10th Cir. 2013) (“[W]here liability is

to be imposed upon an individual defendant for discrimination in violation of the

First Amendment, a plaintiff must prove a discriminatory purpose, supported by

evidence of the defendant’s subjective motivations.”). 4

The operative complaint fails to plausibly allege that Mr. Zwally acted with

discriminatory purpose. It alleges that Mr. Zwally “removed . . . all [Mr. Carr’s]

religious material,” including “2 Holy bibles.” R. at 79. This removal

“prevent[ed] [Mr. Carr] from practicing [his] religion” and “worship[ping].” Id.

at 79, 82. Mr. Carr alleges that Mr. Zwally acted “knowingly,” “oppressively,”

4
We analyze this claim differently than the district court, as Mr.
Carr’s allegations concern an individual act of discrimination instead of a policy
or regulation. Relying on our decision in Makin v. Colo. Dep’t of Corr., 183 F.3d
1205 (10th Cir. 1999), the district court mistakenly applied the analytical
“standard for reviewing the validity of a prison regulation or policy affecting a
prisoner’s fundamental constitutional right, such as the free exercise of his or her
religion.” Id. at 1209; see R. at 89 (Order of Dismissal, filed Apr. 6, 2018).
However, “because ‘[t]he legal sufficiency of a complaint is a question of law,’
we may affirm the district court’s dismissal order if we independently determine
that plaintiff failed to state a claim.” Issa v. Comp USA, 354 F.3d 1174, 1178
(10th Cir. 2003) (alteration in original) (citation omitted) (quoting Dubbs v. Head
Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003)). More generally, it is well
settled that “we may affirm on any ground supported by the record.” A.M. v.
Holmes, 830 F.3d 1123, 1162 & n.23 (10th Cir. 2016) (collecting cases), cert.
denied sub nom. A.M. ex rel. F.M. v. Acosta, --- U.S. ----, 137 S. Ct. 2151 (2017).

7
“abusively,” “purposely,” and “vindictively” in removing the property. Id. at 82,

84. But nothing in the complaint provides “sufficient factual matter to show that”

Mr. Zwally took Mr. Carr’s Bibles and religious materials “not for a neutral . . .

reason but for the purpose of discriminating on account of . . . religion.” Iqbal,

556 U.S. at 677 (emphasis added). All allegations are to the contrary. Mr. Carr

alleges the religious items were taken alongside other non-religious material; he

does not allege that the religious materials themselves were targeted. And while

Mr. Carr alleges that Mr. Zwally acted “knowingly,” “oppressively,” “abusively,”

“purposely,” and “vindictively,” R. at 82, 84, the complaint at most suggests that

Mr. Zwally removed the property out of a personal animus and never connects

these adverbs to anything about Mr. Carr’s religion (which is itself never

specified).

Panels of this court and other courts have declined to find First Amendment

violations on similar facts. See Peterson v. Lampert, 499 F. App’x 782, 783, 785

(10th Cir. 2012) (unpublished) (holding that negligent “alleged loss of certain

religious personal property” did not support free exercise claim); O’Banion v.

Anderson, 50 F. App’x 775, 776–77 (7th Cir. 2002) (unpublished) (holding that

prisoner could not plead a free exercise claim based on the destruction of

religious furs and feathers “without alleging that his religious observance was

unreasonably restricted, or that prison authorities destroyed the items because of

their religious nature, or as discrimination against his particular religion”

8
(citations omitted)); Shidler v. Moore, 409 F. Supp. 2d 1060, 1069–70 (N.D. Ind.

2006) (dismissing free exercise claim based on confiscation of religious mail

because prisoner additionally alleged that he was being denied all mail addressed

to “any name other than his incarceration name,” undermining any “allegation of

an intent to deprive [the prisoner] of access to religious property”).

In sum, Mr. Carr has failed to allege that Mr. Zwally acted “because of” an

effect on Mr. Carr’s religion, and, consequently, his Free Exercise Clause is not

viable. Cf. Lukumi Babalu Aye, 508 U.S. at 540 (plurality op. of Kennedy, J.)

(describing suspect “ordinances [that] were enacted ‘“because of,” not merely “in

spite of,”’ their suppression of Santeria religious practice” (quoting Feeney, 442

U.S. at 279)). 5

B

Mr. Carr also argues that the disposal of his property violated the

Fourteenth Amendment’s Due Process Clause. But “[t]he intentional deprivation

of property is not a [F]ourteenth [A]mendment violation if adequate state

post-deprivation remedies are available.” Durre v. Dempsey, 869 F.2d 543, 547

5
Mr. Carr’s complaint also gestures at claims arising under the
Fourteenth Amendment’s Equal Protection Clause. R. at 79. As with the Free
Exercise Clause claim, Mr. Carr’s failure to allege that Mr. Zwally acted with
discriminatory purpose dooms any Equal Protection Clause claim, as does his
failure to allege that he was a member of any protected class. Cf. Lukumi Babalu
Aye, 508 U.S. at 540 (plurality op. of Kennedy, J.) (relying on “guidance” from
Equal Protection Clause caselaw in Free Exercise Clause analysis and discussing
the relationship between the two clauses).

9
(10th Cir. 1989) (per curiam); see Requena v. Roberts, 893 F.3d 1195, 1212 (10th

Cir. 2018) (“[D]ue process is satisfied so long as ‘a meaningful postdeprivation

remedy for the loss is available.’” (quoting Hudson v. Palmer, 468 U.S. 517, 533

(1984))). A plaintiff “must plead facts showing that his state [post-deprivation]

remedy was inadequate.” Requena, 893 F.3d at 1212–13 (alteration in original)

(emphasis added) (quoting Johnson v. Whitney, 723 F. App’x 587, 593 (10th Cir.

2018) (unpublished)); accord Durre, 869 F.2d at 548. Here, Mr. Carr’s complaint

fails to contain allegations concerning the adequacy vel non of post-deprivation

remedies, and so he fails to state a Due Process Clause claim.

C

Mr. Carr next alleges that he was denied access to the courts because his

legal documents were thrown out. In making a court-access claim, a plaintiff

must make allegations “sufficient to give fair notice to a defendant” of “the

underlying cause of action and its lost remedy.” Christopher, 536 U.S. at 416;

see also id. at 415S17 (observing that underlying claim must be described well

enough to permit evaluation of whether it is “arguable” and “nonfrivolous”).

More specifically, the plaintiff must allege that denial of access to the courts

caused him “actual injury.” See Gee v. Pacheco, 627 F.3d 1178, 1191 (10th Cir.

2010) (“[A] prisoner must demonstrate actual injury from interference with his

access to the courts—that is, that the prisoner was frustrated or impeded in his

efforts to pursue a nonfrivolous legal claim concerning his conviction or his

10
conditions of confinement.”); accord Lewis v. Casey, 518 U.S. 343, 351–52

(1996) (observing that, where inmate’s court-access claim concerns adequacy of

law library or legal assistance program, “an inmate cannot establish relevant

actual injury simply by establishing that his prison’s law library or legal

assistance program is subpar in some theoretical sense”; instead, he must “go one

step further and demonstrate that the alleged shortcomings in the library or legal

assistance program hindered his efforts to pursue a legal claim”).

Mr. Carr’s allegations are general and concern unspecified “legal work,”

including “case laws” and attorney correspondence. R. at 79, 82. These generic

allegations, without more context, insufficiently allege actual injury because they

do not identify the relevance of the work to any particular nonfrivolous claim.

Wardell v. Duncan, 470 F.3d 954, 959 (10th Cir. 2006). The complaint does at

one point allege that removal of these materials “forced [Mr. Carr] to abort trial

preparation and take [a] plea bargain” in an unspecified criminal case. R. at 84.

However, the complaint does not describe whether Mr. Carr was represented by

counsel or proceeding pro se in that matter. This is important because a court-

access claim is necessarily intertwined with the assistance vel non of counsel. See

United States v. Taylor, 183 F.3d 1199, 1204 (10th Cir. 1999) (“It is well

established that providing legal counsel is a constitutionally acceptable alternative

to a prisoner’s demand to access a law library.”); accord Lewis v. Clark, 577 F.

App’x 786, 796–97 (10th Cir. 2014) (unpublished) (affirming dismissal of court-

11
access claim because prisoner was represented by counsel in underlying criminal

case). Furthermore, Mr. Carr does not allege anything regarding the nature or

objectives of his trial preparations, or specifically how the loss of his legal

property scuttled those preparations. While Mr. Carr need not “prove a case

within a case,” Simkins v. Bruce, 406 F.3d 1239, 1244 (10th Cir. 2005), to prevail

on his court-access claim, he cannot establish the requisite actual injury allegedly

stemming from his acceptance of a plea bargain by offering only vague and

conclusory allegations (e.g., lost “legal work”). Thus, we affirm the dismissal of

this claim.

D

Mr. Carr argues that the disposal of his property was an unreasonable

search and seizure under the Fourth Amendment. 6 However, the Supreme Court

has “conclude[d] that prisoners have no legitimate expectation of privacy and that

the Fourth Amendment’s prohibition on unreasonable searches does not apply in

prison cells.” Hudson, 468 U.S. at 530. Likewise, “the same reasons that le[d]

[the Supreme Court] to conclude that the Fourth Amendment’s proscription

against unreasonable searches is inapplicable in a prison cell, apply with

6
Although the district court did not construe Mr. Carr’s complaint as
presenting a Fourth Amendment claim, interpreting his pro se filings liberally, we
nevertheless independently address those portions of Mr. Carr’s complaint that at
least hint at such a claim. See, e.g., R. at 82S83 (alleging Mr. Zwally “violated
[Mr. Carr’s] 4th Amendment” by “search[ing] and seiz[ing]” “personal
property”).

12
controlling force to seizures.” Id. at 528 n.8. While Bell v. Wolfish, 441 U.S. 520

(1979), assumed that Fourth Amendment interests are implicated by cavity

searches of prisoners, we have distinguished that case from Hudson as concerning

“[t]he prisoner’s privacy interest in the integrity of his own person.” Dunn v.

White, 880 F.2d 1188, 1191 (10th Cir. 1989) (per curiam). Because any privacy

interest here did not relate to Mr. Carr’s person—indeed, he was not even in the

cell when the alleged disposal occurred—Mr. Carr’s claim fails. 7

E

Mr. Carr alleges that El Paso County was liable for Mr. Zwally’s actions

because it “hired and supervised [Mr. Zwally] and failed to prevent [Mr. Carr’s]

loss or consequence [sic] [Mr. Zwally].” R. at 79. Even if an underlying

violation had occurred, these allegations never establish El Paso County’s direct

involvement in the alleged actions and instead implicitly proceed on a respondeat

superior theory. But El Paso County “cannot be held liable for the acts of its

employees on a theory of respondeat superior.” Brammer-Hoelter v. Twin Peaks

Charter Acad., 602 F.3d 1175, 1188 (10th Cir. 2010). It “will only be held liable

for its own acts—acts it ‘has officially sanctioned or ordered.’” Id. (quoting

7
Mr. Carr conclusorily asserts that Mr. Zwally’s conduct additionally
constituted a violation of his right to be free from cruel and unusual punishment,
and also a civil rights violation, harassment, discrimination, racism, a hate crime,
bullying, retaliation, and a misuse of power. R. at 79, 83. But we need not credit
these conclusory allegations, Iqbal, 556 U.S. at 678, and Mr. Carr has furthermore
failed to present any argument supporting these theories on appeal. We thus do
not further consider these allegations.

13
Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986)). Because no such

allegations are made here, the claims against El Paso County must be dismissed. 8

IV

Finally, because Mr. Carr has not shown “a reasoned, nonfrivolous

argument on the law and facts in support of the issues raised on appeal,” Watkins

v. Leyba, 543 F.3d 624, 627 (10th Cir. 2008) (quoting McIntosh v. U.S. Parole

Comm’n, 115 F.3d 809, 812 (10th Cir. 1997)), we deny his application to proceed

in forma pauperis and direct him to make full and immediate payment of the

outstanding appellate filing fee.

The district court dismissed Mr. Carr’s second amended complaint as

legally frivolous under 28 U.S.C. § 1915A, generating one strike. See Coleman v.

Tollefson, --- U.S. ----, 135 S. Ct. 1759, 1763 (2015) (“A prior dismissal on a

statutorily enumerated ground counts as a strike even if the dismissal is the

subject of an appeal.”); Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172, 1175

(10th Cir. 2011) (holding that “a dismissal under 28 U.S.C. § 1915A counts as a

strike when the action was dismissed as frivolous, malicious, or for failure to state

a claim, the same grounds listed in 28 U.S.C. § 1915(g)”), abrogated in part on

other grounds by Coleman, 135 S. Ct. 1759. And, because we conclude that his

8
In light of the sound legal bases for dismissal discussed in this Order
and Judgment and the two opportunities to correct deficiencies that Mr. Carr had
already received, we further conclude that the district court did not err in failing
to grant further leave to amend. See Kay, 500 F.3d at 1217–18.

14
appeal is frivolous, we impose a second strike against Mr. Carr. See Hafed, 635

F.3d at 1175, 1179; Burnett v. Allbaugh, 715 F. App’x 848, 853 (10th Cir. 2017)

(unpublished) (“Because we affirm dismissal of his complaint for failure to state a

claim, we necessarily affirm the imposition of a strike. We also assess another

strike for taking a frivolous appeal.”). 9

V

For the foregoing reasons, we AFFIRM the district court’s judgment. We

additionally DENY Mr. Carr’s motion to proceed in forma pauperis and IMPOSE

a second “strike” under 28 U.S.C. § 1915(g).

ENTERED FOR THE COURT

Jerome A. Holmes
Circuit Judge

9
In the last line of their brief, appellees ask for attorneys’ fees.
Aplees.’ Resp. Br. at 17. This request is not properly before us, and so we
decline to address it. F ED . R. A PP . P. 38 (“If a court of appeals determines that an
appeal is frivolous, it may, after a separately filed motion or notice from the court
and reasonable opportunity to respond, award just damages and single or double
costs to the appellee.” (emphasis added)); F ED . R. A PP . P. 38, advisory
committee’s note to 1994 Amendment (providing that “[a] statement inserted in a
party’s brief that the party moves for sanctions is not sufficient notice”); accord
Abeyta v. City of Albuquerque, 664 F.3d 792, 797 (10th Cir. 2011) (denying
request for sanctions under this rule because party “failed to file a separate
motion or notice requesting sanctions”).

15