Cosco v. Uphoff

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 22 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

LOUIS DEAN COSCO; SCOTT
BAILEY; TIMOTHY PAULEY; JEFF
FULLER; MIKE CROSS; JIMMY D.
MADDOX; JAY MEHRING; and
MICHAEL J. WESTMARK,

Plaintiffs - Appellants,

v. No. 99-8036

JUDITH UPHOFF; BRUCE
DANIELS; GARY STARBUCK;
VANCE EVERETT; WILLIAM
HETTGAR; KENNETH KINNEY; and
LARRY HEFFNER, in their individual
and official capacities as employees of
the State of Wyoming,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. No. 97-CV-300-J)

Submitted on the briefs: *

*
After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th
(continued...)
Louis D. Cosco, Scott Bailey, Timothy Pauley, Mike Cross, Jimmy Maddox, and
Jay Mehring, Rawlins, Wyoming; Jeff Fuller, Olney Springs, Colorado; and Mike
Westmark, Des Moines, Iowa, Appellants pro se.

Gay Woodhouse, Attorney General; John W. Renneisen, Deputy Attorney
General; and Francisco L. Romero, Assistant Attorney General, Cheyenne,
Wyoming, for Defendants-Appellees.

__________________________

Before TACHA , McKAY , and MURPHY , Circuit Judges.

PER CURIAM .

_________________________

Appellants, eight pro se Wyoming prison inmates, 1
appeal from a district

court order under Fed. R. Civ. P. 12(b)(6) dismissing their civil rights complaint

against several employees of the Wyoming Department of Corrections. We

affirm.

While incarcerated, appellants have acquired personal property, including

“hobby” and legal materials, which they kept in their cells. Shortly after the

murder of a corrections officer on June 26, 1997, appellees adopted a policy that

limited the amount of property prisoners could keep in their cells. The new policy

*
(...continued)
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
1
Appellant Westmark is no longer incarcerated.

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provided for the storage of unauthorized property for ninety days and gave

inmates the opportunity to ship their property out of the prison to a location of

their choice. As a result of the new policy, prison officials removed property

from appellants’ cells.

Appellants filed their complaint under 42 U.S.C. § 1983, alleging violations

of their First, Fifth, Ninth and Fourteenth Amendment rights. Appellants claimed

that appellees deprived them of their property without due process or equal

protection of the law. 2
In addition, appellants contended that appellees denied

them access to the courts by restricting the legal materials they could keep in their

cells, delaying communications among prisoners, restricting photocopying, and

limiting access to the law library.

I. Due Process Claim

Appellants argue that the Wyoming State Penitentiary’s Inmate Rules

Handbook (IRH) creates a constitutionally protected right to keep the disputed

property in their cells and a constitutionally protected right to any income derived

from that property. They allege that when prison officials enforced the new

policy without hearings, they deprived appellants of their property without due

2
Although appellants appear to have raised an equal protection claim in the
district court and on appeal, they have failed to allege that they were treated
differently than those similarly situated. Consequently, their equal protection
claim is entirely conclusory and without merit.

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process of law.

It is clear from the complaint that appellants are not arguing about the

ownership of the property but rather the right to keep the hobby and legal

materials in their cells. Essentially, they argue that by propounding the

affirmative language of the prison regulations extant before the new policy, the

state created a property interest in the prisoners’ right to keep these items in their

cells which could not be taken away without due process of law. They also

include a claim of property interest in income they would have derived from their

hobby activities. They rely on the methodology of Hewitt v. Helms , 459 U.S.

460, 472 (1983), to arrive at their claim of property interest protected by the Due

Process Clause. Although Hewitt involves due process by virtue of a claimed

liberty interest, the same methodology has been employed in claims of property

interests protected by the Due Process Clause of the Fourteenth Amendment.

Basically, the Hewitt methodology on which appellants rely looks to

mandatory language in statutes or regulations to determine whether the right in

question rises to a level which can only be withdrawn by observing due process

standards. In claims involving property interest, the methodology relies on a

showing that the regulatory language is so mandatory that it creates a right to rely

on that language thereby creating an entitlement that could not be withdrawn

without due process. See Board of Regents of State Colleges v. Roth , 408 U.S.

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564, 577 (1972); Perry v. Sinderman , 408 U.S. 593, 602-03 (1972); and Gillihan

v. Shillinger , 872 F.2d 935, 939 (10th Cir. 1989).

In Sandin v. Conner , 515 U.S. 472, 477-84 (1995), the Supreme Court

expressly rejected that methodology in the context of prison liberty interests.

While we acknowledge that at least one circuit has expressed its opinion that

Sandin “did not instruct on the correct methodology for determining when prison

regulations create a protected property interest,” Bulger v. United States Bureau

of Prisons , 65 F.3d 48, 50 (5th Cir. 1995), 3
we do not see how the Supreme Court

3
Without directly holding, the Sixth and Ninth Circuits have also suggested
that Hewitt -type property interests are not affected by Sandin . See Woodard v.
Ohio Adult Parole Auth. , 107 F.3d 1178, 1182-83 (6th Cir. 1997) (noting that
“the Supreme Court has made it clear that both state law and the Due Process
Clause itself may create [a liberty] interest,” while the prevailing doctrine
instructs that “state law controls as to the existence of a property interest”), rev’d
on other grounds , 523 U.S. 272 (1998); Martin v. Upchurch , No. 93-16907, 1995
WL 563744, at *2 n.2 (9th Cir. Sept. 22, 1995) (unpublished disposition)
(concluding that under Sandin a prisoner “had no liberty interest in his prison
job,” but ruling that the prisoner had no property interest in the prison job because
state law left the employment of prisoner to the discretion of prison officials and
the prisoner “failed to cite any prison regulation which mandates a particular
classification”).
The Seventh Circuit appears to lean the other way, suggesting without
directly holding in Abdul-Wadood v. Nathan , 91 F.3d 1023 (7th Cir. 1996), that
Sandin controls claims of Hewitt -based property interests in the prison setting.
See id. at 1025 (fortifying its conclusion that minor disciplinary penalties imposed
by prison officials “do not implicate any liberty or property interest” by citing to
Sandin ); see also Logan v. Gillam , No. 94-3794, 1996 WL 508618, at *3 (7th Cir.
Aug. 30, 1996) (unpublished disposition) (citing Abdul-Wadood to support its
conclusion: “Although Sandin involved a claim that a regulation created a liberty
interest, its analysis also applies to claims that prison regulation create federally-
(continued...)

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could have made clearer its intent to reject the Hewitt analysis outright in the

prison context. Indeed, if we are to avoid Hewitt ’s “two undesirable effects”

((1) creating disincentives for states to codify prison management procedures and

(2) entangling the federal courts in the day-to-day management of prisons) in the

context of prison property interests, Sandin , 515 U.S. at 482, and return the focus

of our due process inquiry from “the language of a particular regulation” to “the

nature of the deprivation” as Sandin mandates, id. at 481, we must conclude that

the Supreme Court foreclosed the possibility of applying the Hewitt methodology

to derive protected property interests in the prison conditions setting. 4
The

(...continued)
3

enforceable property interests.”)
4
Our conclusion is further bolstered as we consider it unlikely that the
Supreme Court would establish a standard in the prison setting more sensitive to
property interests than liberty interests. At times the Court has defined the two
interests differently. In Justice Breyer’s Sandin dissent, for example, he noted,
“In protecting property, the Due Process Clause often aims to protect reliance ,
say, reliance upon an ‘entitlement’ . . . . In protecting liberty, however, the Due
Process Clause protects, not this kind of reliance upon a government-conferred
benefit, but rather an absence of government restraint . . . .” Sandin , 515 U.S. at
497-98 (Breyer, J., dissenting) (citations omitted). At other times the Supreme
Court has used the two interests analogously. Consider, for example, the Supreme
Court’s liberty interest analysis in Wolff v. McDonnell , 418 U.S. 539, 557 (1974),
which “parallel[ed] the accepted due process analysis as to property” in part
because “a person’s liberty is equally protected,” id. at 558, or the Court’s
interchangeable use of the two terms in Paul v. Davis , 424 U.S. 693, 710-11
(1976), where it reviewed “a variety of interests which are difficult of definition
but are nevertheless comprehended within the meaning of either ‘liberty’ or
‘property’ as meant in the Due Process Clause.” We do not have to decide
whether the two interests are to be equally protected, but it seems appropriate to
(continued...)

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Supreme Court mandate since Sandin is that henceforth we are to review property

and liberty interest claims arising from prison conditions by asking whether the

prison condition complained of presents “the type of atypical, significant

deprivation in which a State might conceivably create a liberty [or property]

interest.” 5
Id. at 486.

Appellants claim in the case at hand that mandatory language in the

regulations governing what the prisoners could keep in their cells created a

property interest or entitlement and ensured them a continuation of the same

interest absent due process. That is precisely the methodology rejected by the

Supreme Court in Sandin . The regulation of type and quantity of individual

possession in cells is typical of the kinds of prison conditions that the Court has

declared to be subject to the new analysis set forth in Sandin . Applying the

Court’s analysis, we cannot say that the new regulations promulgated in this case

(...continued)
4

conclude that if one merited more protection than the other that would be liberty.
5
The Court noted:

Prisoners such as Conner, of course, retain other protection
from arbitrary state action even within the expected conditions of
confinement. They may invoke the First and Eighth Amendments
and the Equal Protection Clause of the Fourteenth Amendment where
appropriate, and may draw upon internal prison grievance procedures
and state judicial review where available.

Sandin , 515 U.S. at 487 n.11.

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present “the type of atypical, significant deprivation [of their existing cell

property privileges] in which a State might create a [property] interest.” Id. at

486.

Appellants in their brief make clear that they are also relying on a Hewitt -

Roth argument about income from hobbies, not the right to a prison job foreclosed

by Ingram v. Papalia , 804 F.2d 595, 596 (10th Cir. 1986). Arguing that hobby-

based income is actually a property interest and not a prison job, however, does

not limit the applicability of Sandin . The Hewitt -Roth methodology is as

inapplicable to the claim of a right to earn hobby incomes as it is to the kind of

property interests discussed above.

Even though the trial court did not rely on Sandin analysis, our review of

the complaint leads us to conclude that Sandin applies and that the trial court

properly dismissed all the due process claims pursuant to Rule 12(b)(6).

II. Denial of Access to the Courts

To establish that they have been denied access to the courts, appellants

must demonstrate “actual injury.” See Lewis v. Casey , 518 U.S. 343, 349 (1996).

In their materials, however, Appellants have merely set forth conclusory

allegations of injury. There is no evidence to indicate that appellees hindered

appellants’ efforts to pursue a legal claim. Therefore, we agree with the district

court that, under Rule 12(b)(6), appellants have failed to state a claim for denial

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of access to the courts.

III. Motion to Strike

During the course of this appeal, appellants filed a supplemental index.

Appellees moved to strike appellants’ supplemental index because it contains

several documents that were not filed in the district court and do not appear in the

record. In response, appellants filed a motion for remand. Although documents

which are not filed with the district court are not part of the record, see Fed. R.

App. Proc. 10(a)(1) (1999), we have nevertheless reviewed the supplemental

documents filed by appellants and find that they do not affect our decision on the

merits. Accordingly, we deny both appellees’ motion to strike and appellants’

motion for remand.

AFFIRMED.

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