FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 19, 2017
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Elisabeth A. Shumaker
Clerk of Court
CHAD A. COBURN,
Plaintiff - Appellant,
v. No. 16-7076
(6:15-00195-RAW-SPS)
TIM WILKINSON, Warden, Davis (E.D. Okla.)
Correctional Facility, a/k/a Tim Wilkens;
MRS. CARTWRIGHT, Property Officer;
MS. MORRISON, Property Officer,
Defendants - Appellees.
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ORDER AND JUDGMENT
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Before HARTZ, MURPHY, and PHILLIPS, Circuit Judges.
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Chad A. Coburn, a state prisoner appearing pro se, appeals the dismissal of a
§ 1983 action. Coburn alleges that his constitutional rights were violated when prison
employees deprived him of his rights to due process and equal protection. Because
we conclude that Coburn has received the full extent of due process to which he was
entitled, and because he has failed to allege sufficient facts to support an equal-
protection claim, we affirm the district court’s ruling and dismiss this appeal.
This order and judgment is not binding precedent, except under the doctrines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 Federal Rule Appellate Procedure 32.1 and 10th
Circuit Rule 32.1.
BACKGROUND
On June 17, 2014, Coburn, an inmate in the custody of the Oklahoma
Department of Corrections housed at Davis Correctional Facility in Holdenville,
Oklahoma, was removed from his job in the prison-facility kitchen for misbehavior.
He was issued misconduct charges for “possession of contraband, failure to follow
verbal orders, theft, and threatening another with harm,” and was escorted to the
prison facility’s segregation unit. R. at 35.
Joanne Cartwright, the Davis Correctional Facility Property Supervisor, heard
over her radio that Coburn was being moved to segregation. As part of her
responsibilities, she asked another correctional officer to secure Coburn’s belongings
in his cell, numbered AS 108, until she could pack and inventory his property.
Cartwright then inventoried Coburn’s property by listing his belongings on the prison
facility’s “Personal Property Receipt” form, noted that the belongings were in cell
number AS 108, and gave the form to Coburn for his review. Coburn signed the form
that day and was admitted to the segregation unit. On September 29, 2014, Coburn
was discharged from the segregation unit and signed the form again.
While in segregation, Coburn submitted two “Lost/Damaged/Stolen Personal
Property Claim” forms, alleging that some of his property1 had been stolen or lost. Id.
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Coburn alleged that an “RCA Remote” was lost or damaged and the
following were stolen: “New Sangean Clear, Head Phones with Bud Koss, Head
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at 51-56. Cartwright, acting as the Property Supervisor, investigated and denied the
claims, noting that she had personally inventoried and collected Coburn’s property.
Warden Tim Wilkinson reviewed the claims and approved the denial. Coburn then
filed a “Denied Property Claim Appeal” with Warden Wilkinson, who reviewed and
then denied the appeal. Id. at 53.
Coburn then filed a civil rights complaint against prison officials in federal
court under 42 U.S.C. § 1983, alleging a violation of his due-process rights and his
rights to equal protection under the Fourteenth Amendment. At the district court,
Coburn argued that prison officials had “neglected their own polic[ie]s and
procedures and protocol and failed to do the[ir] JOB. [W]hich created a neglecting of
offenders property interest.” Id. at 8. Specifically, Coburn argued that prison officials
had inventoried and noted the wrong cell—FC 209—when Coburn was in fact housed
in AS 108. Coburn also alleged that “prison officials . . . pick [and] choose people
who they want to help and not help.” Id. at 17. In his complaint, Coburn asserted that
he had sought administrative remedies and exhausted the administrative process.
Coburn did not allege that the administrative process was defective.
Prison officials filed a motion to dismiss the claim under 42 U.S.C. § 1997e(a)
and Federal Rules of Civil Procedure Rule 12(b)(6), arguing that Coburn had failed
to state a claim upon which relief could be granted. Attacking the violation-of-due-
process claim, prison officials argued that Coburn had received and signed the
Phone [Extension], Hot Pot, Electrical Power Bar, [three] Pair[s] of Dickies Blue 36
36, Brown Boots, Air Jordans, Gold Chain with cross.” R. at 51, 55.
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property inventory sheet, had not provided any evidence of ownership of the items
claimed on the “Lost/Damaged/Stolen Property Claim,” and had received the full
measure of due process to which he was entitled. Id. at 80-82. Prison officials
commented that Coburn “may be upset that his claim was denied, but he was not
denied access to the process.” Id. at 82. Regarding Coburn’s claim of a denial of
equal protection, prison officials argued that Coburn did not provide sufficient facts
and that his allegations were “self-serving, vague, and conclusory.” Id. at 83.
The district court agreed and granted the motion to dismiss. The district court
found that the prison facility had a clear process in place to address the loss of inmate
property, noting that Coburn’s claims were submitted, investigated, and denied, and
that the warden had reviewed and approved the denial. The court also found that the
“Personal Property Receipt” form had noted the correct cell number—AS 108—and
that Coburn acknowledged the form by signing it twice. Id. at 141-42. Further, the
district court found that Coburn had received the full measure of due process to
which he was entitled, noting that the “fact that his claim was denied does not equate
to a denial of due process.” Id. at 143. As for Coburn’s equal-protection claim, the
district court noted that a plaintiff must allege that he was treated differently because
of a suspect classification, which Coburn had not done. The court concluded that
Coburn had failed to allege sufficient facts and that his claim was vague and
conclusory, and thus failed to state an equal protection claim. The district court
dismissed Coburn’s complaint for failure to state a claim and counted it as his first
strike under 28 U.S.C. § 1915(g). Coburn filed a timely appeal.
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DISCUSSION
I. Standard of Review
We review de novo the district court’s decision to dismiss a complaint under
28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim. Perkins v. Kansas Dept. of
Corrections, 165 F.3d 803, 806 (10th Cir. 1999). We apply the same standard of
review for § 1915(e)(2)(B)(ii) dismissals as we do for Federal Rule of Civil
Procedure Rule 12(b)(6) motions. Kay v. Bemis, 500 F.3d 1214, 1217-18 (10th Cir.
2007). Despite this similarity, dismissing a pro se complaint for failure to state a
claim under § 1915(e)(2)(B)(ii) is proper only where it is (1) obvious that the
plaintiff cannot prevail on the facts he has alleged, and (2) it would be futile to give
him an opportunity to amend. Perkins, 165 F.3d at 806.
As for 12(b)(6) motions, we look to the plausibility of the complaint,
specifically the “allegations in the complaint to determine whether they plausibly
support a legal claim for relief.” Kay, 500 F.3d at 1218 (internal quotation marks
omitted). Further, allegations in a complaint “must be enough to raise a right to relief
above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Because Coburn is a pro se litigant, we construe his pleadings liberally, but we do not
serve as his advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
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Turning now to Coburn’s complaints, we find that he cannot prevail on the facts
alleged and we are convinced an amended complaint would be futile.
II. 14th Amendment Violation Claims
A. Due Process
The Fourteenth Amendment prohibits a state from depriving “any person of
life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1.
A state must not “deprive a person of life, liberty or property unless fair procedures
are used in making that decision.” Copelin-Brown v. New Mexico State Pers. Office,
399 F.3d 1248, 1254 (10th Cir. 2005) (quoting Archuleta v. Colo. Dep’t of Insts.,
Div. of Youth Servs., 936 F.2d 483, 490 (10th Cir. 1991)). The Supreme Court has
held that “an unauthorized intentional deprivation of property . . . does not constitute
a violation of the procedural requirements of the Due Process Clause of the
Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is
available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984). Inmate grievance
procedures can be an adequate post-deprivation remedy for the alleged destruction of
property. Id. at 536 n.15. A violation of due-process procedures exists if the post-
deprivation procedure is “unresponsive or inadequate.” Freeman v. Dep’t of Corrs.,
949 F.2d 360, 362 (10th Cir. 1991).
Here, when Coburn was escorted to segregation, he was given an inventoried
list of his belongings that Cartwright had assembled. Coburn argues that Cartwright
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inventoried the wrong cell, yet the proper cell number is noted on the top of the form
and Coburn signed the form twice, acknowledging receipt. When Coburn then
submitted his two “Lost/Damaged/Stolen Personal Property Claim” forms, he
acknowledged that he didn’t have receipts or other evidence of ownership of the
allegedly lost and stolen property. R. at 51, 55.
Coburn used the available inmate-grievance procedures to have his claim
submitted, investigated, and reviewed by the warden. It was denied. Coburn then
filed an appeal that was also denied. Coburn doesn’t provide evidence that the
process was unresponsive or inadequate. Thus, we find that Coburn received the full
measure of due process to which he was entitled. We agree with the district court that
a denial of an appeal does not amount to a denial of due process. We therefore find
that Coburn’s due-process claim fails.
B. Equal Protection
The Fourteenth Amendment also prohibits a state from denying “any person
within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.
To state a successful claim under the Equal Protection Clause, Coburn must prove
“that [he was] treated differently from others who were similarly situated to [him].”
Brown v. Montoya, 662 F.3d 1152, 1772-73 (10th Cir. 2011) (internal quotation
marks omitted). Thus, Coburn must show that he was treated differently from other
inmates while providing “facts sufficient to overcome a presumption of government
rationality.” Brown v. Zavaras, 63 F.3d 967, 971 (10th Cir. 1995). Furthermore, pro
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se litigants “must do more than make mere conclusory statements regarding
constitutional claims.” Id. at 972.
Here, Coburn’s brief lacks any valid argument supporting a violation of the
Equal Protection Clause of the Fourteenth Amendment. At the district court, Coburn
argued that prison officials would “pick [and] choose people who they want to help
and not help.” R. at 17. He also asserted that prison officials acted with “malice
intent” and in “reckless ways.” Id. Coburn does not provide any evidence beyond
these conclusory statements and does not allege sufficient facts supporting these
conclusions. We therefore find that Coburn has failed to state an equal-protection
claim under which relief can be granted.
III. Frivolous Appeals Under 28 U.S.C. § 1915(g)
Finally, 28 U.S.C. § 1915(g) prohibits prisoners from bringing civil actions or
appeals under ifp status if the prisoner has, on three or more occasions, brought an action
or appeal that was dismissed because it was “frivolous, malicious, or fails to state a claim
upon which relief may be granted, unless the prisoner is under imminent danger of
serious physical injury.” For his claims at the district court, Coburn was assessed his first
strike under § 1915(g). We now assess a second strike for this frivolous appeal. See
Jennings v. Natrona Cty. Det. Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir. 1999) (“If
we dismiss as frivolous the appeal of an action the district court dismissed under 28
U.S.C. § 1915(e)(2)(B), both dismissals count as strikes.”) (overruled on other grounds
by Coleman v. Tollefson, 135 S. Ct. 1759, 1763-64 (2015)). We urge Coburn to consider
more carefully when to file lawsuits and appeals, so that if more meritorious
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circumstances ever arise for a civil suit in federal court, ifp status will not be
automatically foreclosed for him.
CONCLUSION
For the reasons stated, we affirm the district court’s judgment granting the
appellee’s motion to dismiss and assess a second strike under 28 U.S.C. § 1915(g).
Although the district court dismissed the action under § 1915(e)(2)(B)(ii), it granted
Coburn’s application to proceed in forma pauperis, payable in partial payments. We
remind Coburn of his continuing obligation to make partial payments on his filing fee
until the entire fee has been paid. See 28 U.S.C. § 1915(b).
Entered for the Court
Gregory A. Phillips
Circuit Judge
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