Griffin v. Hickenlooper ( 2013 )


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  •                                                              FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS       Tenth Circuit
    FOR THE TENTH CIRCUIT                     December 12, 2013
    Elisabeth A. Shumaker
    Clerk of Court
    HENRY LEE GRIFFIN, JR.,
    Plaintiff-Appellant,
    v.                                                        No. 13-1126
    (D.C. No. 1:11-CV-03380-REB-BNB)
    JOHN W. HICKENLOOPER, as                                   (D. Colo.)
    Governor of the State of Colorado, in his
    official capacity; RICK RAEMISCH, in
    his official capacity;* TOM CLEMENTS,
    in his individual capacity;** JOHN L.
    DAVIS, in his individual and official
    capacity,
    Defendants-Appellees.
    *
    Pursuant to Rule 43(c)(2) of the Federal Rules of Appellate Procedure, Rick
    Raemisch is substituted in his official capacity for Roger Werholtz, Interim
    Executive Director of the Colorado Department of Corrections, who was previously
    substituted for Tom Clements, Executive Director of the Colorado Department of
    Corrections, as a Defendant-Appellee in this action.
    **
    Mr. Clements is deceased. Mr. Griffin asserted a claim against him in both
    his official and individual capacities. Our substitution of Mr. Raemisch for
    Mr. Clements under Fed. R. App. P. 43(c)(2) affects only the official-capacity
    allegations. Because we affirm the district court’s dismissal of Mr. Griffin’s entire
    claim against Mr. Clements, however, we need not substitute an appropriate party
    for Mr. Clements in his individual capacity. See Kincaid v. Rusk, 
    670 F.2d 737
    , 741
    n.3 (7th Cir. 1982) (stating court of appeals did not have to determine whether it
    should have substituted current sheriff “or any other person” for purposes of
    individual-capacity claim against deceased sheriff sued in both official and individual
    capacities, where dismissal of individual-capacity claims against sheriff was
    appropriate), abrogation on other grounds recognized in Salazar v. City of Chicago,
    
    940 F.2d 233
    , 240 (7th Cir. 1991).
    ORDER AND JUDGMENT***
    Before GORSUCH, ANDERSON, and HOLMES, Circuit Judges.
    Henry Lee Griffin, Jr., appeals pro se from the dismissal of his prisoner civil
    rights complaint, brought pursuant to 42 U.S.C. § 1983. The district court dismissed
    two of his claims on screening. See 28 U.S.C. § 1915(e)(2)(B). It then referred the
    remaining three claims to a magistrate judge. The district court adopted the
    magistrate judge’s recommendation and dismissed the remaining three claims for
    failure to state a claim.
    In addition to the dismissals, Mr. Griffin challenges the district court’s order
    staying discovery and its award of costs in favor of defendant Hickenlooper. We
    affirm in part, and dismiss the appeal in part.
    I. Dismissal For Failure to State a Claim
    We review de novo the district court’s dismissal for failure to state a claim
    under Fed. R. Civ. P. 12(b)(6). See Casanova v. Ulibarri, 
    595 F.3d 1120
    , 1124
    (10th Cir. 2010). To survive a Rule 12(b)(6) motion, a plaintiff’s well-pleaded
    ***
    After examining the briefs 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. It may be cited, however, for its persuasive value consistent with
    Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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    factual allegations must, when taken as true and viewed in the light most favorable to
    the plaintiff, state a claim for relief “‘that is plausible on its face.’” 
    Id. (quoting Bell
    Atl. Corp. v. Twombly, 
    550 U.S. 544
    , 570 (2007)). “Because [Mr. Griffin] is
    proceeding pro se, we liberally construe his filings.” 
    Id. at 1125.
    A. Challenge to Colorado’s “Three Strikes” Provision
    Mr. Griffin’s first claim presents a constitutional challenge to Colo. Rev. Stat.
    § 13-17.5-102.7(1). This state-law provision concerns inmates who have on three or
    more occasions brought a civil action based upon prison conditions that has been
    dismissed for one of several enumerated reasons, including frivolousness. Under the
    statute, such inmates are prohibited from proceeding at public expense in subsequent
    proceedings. We previously upheld the validity of a similar federal law against
    challenges like those Mr. Griffin raises. See, e.g., White v. Colorado, 
    157 F.3d 1226
    ,
    1232-35 (10th Cir. 1998) (addressing constitutional challenges to 28 U.S.C.
    § 1915(g)). He provides us with no good reason to reach a different result
    concerning his constitutional challenges to the substantially similar provisions of
    § 13-17.5-102.7(1).1 We therefore affirm the dismissal of this claim.
    1
    Mr. Griffin’s argument that 28 U.S.C. § 1915(b)(4) preempts
    § 13-17.5-102.7(1) is frivolous. The language he quotes from § 1915(b)(4),
    considered in context, does not conflict with the three-strikes requirement under
    either federal or state law.
    -3-
    B. Challenge to Temporary Denial of Privileges
    Mr. Griffin’s second claim attacks the constitutionality of another Colorado
    statute, Colo. Rev. Stat. § 17-20-114.5, and a concomitant regulation, AR 600-05.
    These provisions permit the Colorado Department of Corrections to deny privileges
    to inmates in state correctional facilities as a disciplinary measure. Among the
    privileges affected by the statute and regulation are the inmate’s use and enjoyment
    of personal items such as television, radio, entertainment systems, or snacks. Such
    items, Mr. Griffin argues, are “property” owned by the inmates under Colorado law
    and therefore cannot be considered a privilege that can be taken from them as a
    disciplinary measure. This being the case, he contends, the challenged statute and
    regulation interfere with his state-created property and/or liberty interest in the use of
    his property without due process of law.
    The district court, relying on Cosco v. Uphoff, 
    195 F.3d 1221
    , 1224 (10th Cir.
    1999), concluded that the temporary deprivation of Mr. Griffin’s property for
    disciplinary reasons was “not an atypical, significant hardship of prison life” and
    therefore could not give rise to a due process claim. R., Vol. I at 165. We agree.
    We therefore affirm the dismissal of this claim. (We address Mr. Griffin’s
    complaints about permanent deprivation of his property, infra.)
    C. Challenge to Involuntary Servitude/Inadequate Compensation
    In his third claim, Mr. Griffin challenges the constitutionality of
    Colo. Rev. Stat. § 17-20-115, which requires inmates to work. He contends this
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    statute deprives him of the full value of his labor and subjects him to involuntary
    servitude. He further argues that the statute deprives him of due process because he
    did not receive specific notice that he would be required to work as part of his
    criminal proceedings and because the work requirement was not expressly made part
    of his judgment and sentence.
    Requiring Mr. Griffin to work in prison for prison wages is not
    unconstitutional. The Thirteenth Amendment expressly permits “involuntary
    servitude” as “punishment for crime whereof the party shall have been duly
    convicted.” U.S. Constitution, Amend. XIII, § 1. “A prisoner has no basis for
    asserting a violation of due process simply because he is made or allowed to work for
    low pay as punishment for a crime of which he was lawfully convicted.” Serra v.
    Lappin, 
    600 F.3d 1191
    , 1196 (9th Cir. 2010).
    As to his due-process argument claiming a lack of notice, the alleged
    deprivations of his liberty and property were not accomplished without due process
    of law; rather, Mr. Griffin was convicted of a crime, and the labor he complains of is
    one component of his sentence of incarceration. He cites no authority requiring that,
    as part of his criminal proceedings or individual judgment and sentence, an inmate be
    notified of every incident of prison life, including the obligation to work. In
    addition, the very statute Mr. Griffin challenges puts inmates on notice that if
    convicted, they are obligated to work. See Colo. Rev. Stat. § 17-20-115. This claim
    was therefore properly dismissed.
    -5-
    II. Claims Dismissed on Screening
    We review a dismissal for frivolousness under § 1915(e)(2)(B)(i) for an abuse
    of discretion. See Conkle v. Potter, 
    352 F.3d 1333
    , 1335 n.4 (10th Cir. 2003). To the
    extent the dismissal for frivolousness turns on an issue of law, however, we review it
    de novo. 
    Id. A. Due-Process
    Claim Involving Seizure and Disposal of Property
    In his fourth claim, Mr. Griffin charged that AR 850-06—governing
    disposition of inmate property—is unconstitutional on its face and as applied to him.
    The district court rejected the facial challenge because Mr. Griffin failed to show that
    the regulation was “unconstitutional in all of its applications.” R., Vol. I at 77.
    See United States v. Salerno, 
    481 U.S. 739
    , 745 (1987) (stating standard).
    Mr. Griffin argues, incorrectly, that this facial challenge standard does not
    apply to administrative regulations like AR 850-06. See, e.g., Reno v. Flores,
    
    507 U.S. 292
    , 300-01 (1993) (holding Salerno test applicable to facial challenge to
    INS regulation); Scherer v. U.S. Forest Serv., 
    653 F.3d 1241
    , 1243 (10th Cir. 2011)
    (“To prevail in [a] facial challenge to an agency’s regulation, the plaintiff[] must
    show that there is ‘no set of circumstances’ in which the challenged regulation might
    be applied consistent with the agency’s statutory authority.”). Alternatively, he
    argues that his complaint meets the Salerno test, because AR 850-06 conflicts with
    certain Colorado statutes, making it “statutorily void [and] unconstitutional in all of
    its applications.” Aplt. Opening Br. at 6. We disagree. Mr. Griffin fails to show that
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    the Colorado statutes he cites, which provide the Colorado Department of Corrections
    with authority to operate a canteen for the benefit of inmates, are in conflict with
    AR 850-06, which governs inmate personal property.
    We turn to the “as-applied” challenge. In his complaint, Mr. Griffin claimed
    that Mr. Clements
    authorized his CDOC employees to deprive me of $603.14 of my
    personal property by taking it and throwing it in an authorized CDOC
    CSP Dumpster without my authorization and I never received just
    compensation for my personal property, therefore 850-06 violated and
    caused injury to my Fifth and Fourteenth Amendment rights.
    R., Vol. I at 55.
    The district court concluded that there was no procedural due process violation
    because Mr. Griffin had adequate post-deprivation remedies: he could pursue the
    prison grievance procedure and/or file an action in state court. See Hudson v.
    Palmer, 
    468 U.S. 517
    , 533, 536 n.15 (1984) (stating unauthorized destruction of
    property by state employee requires post-deprivation remedy; such remedy may
    include prison grievance procedure). But Mr. Griffin does not assert that
    Mr. Clements committed an act unauthorized by state procedure. Rather, he claims
    that the deprivation resulted from an established state procedure. Post-deprivation
    remedies alone are insufficient where the deprivation of property results from an
    established state procedure. See Logan v. Zimmerman Brush Co., 
    455 U.S. 422
    ,
    435-36 (1982).
    -7-
    Nevertheless, we affirm the dismissal of this claim, because Mr. Griffin was
    provided with both adequate pre-deprivation and post-deprivation remedies.
    We have previously held that due process is satisfied when a prison provides a
    meaningful opportunity for the inmate to send unauthorized property to someone
    outside the prison as an alternative to having it destroyed. Searcy v. Simmons,
    
    299 F.3d 1220
    , 1229 (10th Cir. 2002). Here, the DOC regulations provided
    Mr. Griffin with notice of the seizure and an opportunity to direct the disposition of
    his property as an alternative to its destruction.
    AR 850-06 provides that “[u]nauthorized property will be disposed of in
    accordance with AR 300-06, Searches and Contraband Control.” CDOC Reg.
    850-06(IV)(A)(7). Under AR 300-06, prison officials may dispose of property that
    is determined to be contraband. See CDOC Reg. 300-06(III)(D), 300-06(IV)(S).
    If an inmate can prove ownership and the item does not pose a security risk, the
    inmate may mail it from the prison at his or her own expense. CDOC Reg.
    300-06(IV)(S)(6)(d). If the inmate lacks available funds to mail the item out within
    ten days of notice, the item may be destroyed or in some cases donated to charity. 
    Id. According to
    an affidavit attached to his amended complaint, Mr. Griffin
    received the appropriate notice and did mail some of his unauthorized property
    outside of the prison pursuant to the prison policy. Other property apparently was
    destroyed because at the time of disposition Mr. Griffin did not have adequate funds
    in his prison account to cover mailing costs. But Mr. Griffin does not assert that his
    -8-
    lack of funds denied him a meaningful opportunity to mail out the property before it
    was destroyed.
    In Searcy, the inmate lost only the possession of his property and not its
    ownership. 
    Searcy, 299 F.3d at 1229
    . Here, Mr. Griffin lost all of his property rights
    once the property was destroyed. But, as the district court found, if aggrieved by the
    destruction, Mr. Griffin had a post-deprivation remedy. He could file an action in
    state court or pursue the inmate grievance process to obtain redress.
    Mr. Griffin argues that the state-court remedy was inadequate, because
    although he filed a state-court suit, it was dismissed due to his inability to pay the
    filing fee. We need not consider this argument, however, because he does not
    challenge the district court’s alternate finding: that the prison grievance procedure
    itself provided an adequate post-deprivation remedy. See 
    Hudson, 468 U.S. at 536
    n.15 (indicating prison grievance procedure can provide adequate post-deprivation
    remedy); Al-Ra’id v. Ingle, 
    69 F.3d 28
    , 32 (5th Cir. 1995) (same).2 Given the
    availability of both adequate pre-deprivation and post-deprivation remedies,
    Mr. Griffin suffered no deprivation of his procedural due process rights.3
    2
    Mr. Griffin states that he pursued the grievance process, but it was
    unsuccessful. But a remedy is not inadequate merely because it is unsuccessful.
    3
    As worded in his complaint, Mr. Griffin’s fourth claim included occasional
    references to “just compensation” for his loss. R., Vol. I at 55-56. But in his
    opening brief in this court, he focuses all of his arguments on the alleged denial of
    procedural due process. We therefore will not consider whether his complaint stated
    a separate claim for “just compensation.”
    -9-
    B. Warden’s Failure to Prevent Use of False Evidence
    Finally, in his fifth claim, Mr. Griffin alleged that Warden John L. Davis
    unconstitutionally permitted prison employees to use false evidence against him at a
    disciplinary hearing that resulted in his being sentenced to fifteen days of disciplinary
    segregation. The district court concluded this claim failed because Warden Davis
    had not personally participated in the alleged constitutional violation.
    Mr. Griffin’s complaint recites that after disciplinary charges were brought
    against him, but prior to the hearing on those charges, he sent an offender
    communication form to Warden Davis requesting that the warden intervene in the
    pending disciplinary proceeding to prevent a violation of his procedural due process
    rights through the use of false evidence. He complains the warden “failed to take
    reasonable steps to remedy a foreseeable unconstitutional hearing,” resulting in his
    conviction and sentence to punitive segregation. R., Vol. I at 57.
    We affirm, but on a different basis than that cited by the district court. We
    conclude that Mr. Griffin has failed to allege a plausible due process claim. He
    admits that once convicted of the offense, he was permitted to appeal his conviction
    to the warden, and he affirmatively states that the warden upheld his conviction on
    appeal. He thus had an opportunity to present his false evidence claim to the warden,
    and to have it ruled upon. Given this opportunity, he fails to show that the warden’s
    - 10 -
    alleged lack of response to his pre-hearing notice denied him due process.4 The
    district court therefore properly dismissed this claim.
    III. Stay of Discovery
    Shortly before defendant Hickenlooper filed his motion to dismiss, Mr. Griffin
    served written interrogatories on him. Mr. Hickenlooper then filed a motion to stay
    discovery. The magistrate judge granted the motion. Mr. Griffin did not appeal to
    the district court from the magistrate judge’s grant of the stay of discovery. We
    therefore cannot consider his appeal from the magistrate judge’s order. See, e.g.,
    SEC v. Merrill Scott & Assoc., 
    600 F.3d 1262
    , 1269 (10th Cir. 2010) (noting that
    litigant’s failure to file objections to magistrate judge’s non-dispositive order “strips
    us of jurisdiction to review the challenged order”).
    IV. Award of Costs
    In its final judgment, the district court awarded defendant Hickenlooper his
    costs, to be taxed by the clerk of court. Defendants have never filed a bill of costs;
    nor has the district court taxed any specific amount of costs against Mr. Griffin. We
    therefore lack appellate jurisdiction over the issue of costs. See, e.g., Mekdeci ex rel.
    Mekdeci v. Merrell Nat’l Labs, 
    711 F.2d 1510
    , 1523 (11th Cir. 1983).
    4
    Mr. Griffin now complains of Warden Davis’s actions in connection with the
    disposition of his appeal, and of the warden’s alleged “failure to supervise” his
    employees. See Aplt. Reply Br. at 5-7. Although he asserts that these allegations
    were part of his complaint, we disagree. The allegations will therefore not be
    considered in evaluating whether he has stated a claim.
    - 11 -
    CONCLUSION
    The judgment of the district court is affirmed. We dismiss Mr. Griffin’s
    appeal from the order staying discovery and from the award of costs for lack of
    jurisdiction. Mr. Griffin’s request to proceed in forma pauperis on appeal is granted,
    and he is reminded of his obligation to continue making partial payments until the
    final fee has been paid. His request for costs on appeal is denied.
    Entered for the Court
    Stephen H. Anderson
    Circuit Judge
    - 12 -