13 F.3d 1439 (10th Cir. 1994), 92-4196, Abbott v. McCotter
| Citation | 13 F.3d 1439 |
| Party Name | Jeffrey L. ABBOTT, Sr., Plaintiff-Appellant, v. O. Lane McCOTTER, Gary W. Deland, R. Spencer Robinson, C. Kim Thompson, Lynn Jorgensen, M. Tamera Holden, Billie Casper, Margaret Petersen, Bruce A. Daniels, Scott Carver, Charles Hobbs, Jay B. Leslie, Lee Liston, Elzo Rex Talbot, Daniel Avis, Myrna Vigil, Richard Fischer, Andrew Hunt, Marilyn P. Wool |
| Case Date | January 18, 1994 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Tenth Circuit |
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Blake S. Atkin, Salt Lake City, UT, for plaintiff-appellant.
Jeffrey L. Abbott, Sr., pro se.
Brent A. Burnett, Asst. Atty. Gen. (Jan Graham, Utah Atty. Gen., with him on the brief), Salt Lake City, UT, for defendants-appellees.
Before LOGAN and MOORE, Circuit Judges, and BROWN, District Judge. [*]
LOGAN, Circuit Judge.
Plaintiff Jeffrey L. Abbott, proceeding in forma pauperis (IFP), filed a 42 U.S.C. Sec. 1983 complaint against guards, administrators, and other employees of the Utah Department of Corrections, alleging that they transferred plaintiff to administrative segregation without due process in violation of the Fourteenth Amendment and confiscated articles of plaintiff's personal property contrary to his state-created liberty interest. Plaintiff also argued that the wrongful transfer and property deprivation subjected him to conditions amounting to cruel and unusual punishment in violation of the Eighth Amendment. Finally, plaintiff asserted an equal protection violation on the grounds that the conditions in administrative segregation were worse than the conditions experienced by prisoners in disciplinary segregation. The district court, adopting the report and recommendation of the magistrate judge, dismissed plaintiff's suit as "frivolous" under 28 U.S.C. Sec. 1915(d). Plaintiff appealed. We affirm in part and reverse in part the district court's judgment.
"A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972)). But because "a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits," the federal courts have discretion to dismiss claims filed IFP if they lack "an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 324-25, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989). In the instant case, the magistrate judge concluded and the district court agreed that the plaintiff's claims were both factually and legally frivolous. We review the Sec. 1915(d) dismissal of plaintiff's suit for abuse of discretion. Denton v. Hernandez, --- U.S. ----, ----, 112 S.Ct. 1728, 1734, 118 L.Ed.2d 340 (1992).
I
According to plaintiff's complaint, when he was transferred to administrative segregation, the deputy warden making the transfer told him the grounds for his reassignment were his "unwillingness to comply with rules and regulations" and "generally inappropriate behavior." I R. Tab 2, p 37. The deputy warden allegedly told plaintiff: "[i]f your behavior is improved in fourteen (14) days, you will be considered for removal from the administrative segregation status, but if your
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behavior has not changed, then you will be continued for another ninety (90) days." Id. at p 38. Plaintiff claims that he was given no more explanation, that he was not allowed to speak or ask questions of any of the defendants, and that the entire meeting with the deputy warden lasted three to five minutes. Id. at pp 40-43. Upon returning to his cell, plaintiff discovered numerous items of his personal property had been confiscated and the only items remaining were "some legal materials, one reading book and a standard issue of clothing and bedding." Id. at pp 47 & 51. A signed, but otherwise blank, property confiscation slip left on the floor of plaintiff's cell provided no explanation for the confiscation. Id. at pp 48-50.
Plaintiff filed formal grievances seeking the return of his various personal property items, including hair conditioner, baby oil, lotion, deodorant, a blue-covered Bible, and several religious magazines, during the course of his nearly seven-month stint in administrative segregation. See Appellant's Brief, App. C, Docs. 1-3 (hereafter App.). Most of plaintiff's grievances were formally denied on the grounds that plaintiff possessed the standard property allotment for persons in special intensive management 1 as delineated in the "Hobbs' Memo," allegedly promulgated one week after plaintiff's segregation began. Id. 2 Most of plaintiff's property was not returned until he was released from administrative segregation.
II
When evaluating an IFP complaint, "[s]ection 1915(d) gives the district court 'the unusual power to pierce the veil of the complaint's factual allegations and dismiss [as frivolous] those claims whose factual contentions are clearly baseless.' " Shabazz v. Askins, 980 F.2d 1333, 1334 (10th Cir.1992) (quoting Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833). The district court's assessment must be weighted in favor of the plaintiff, and the "complaint may not be dismissed ... simply because the court finds the plaintiff's allegations unlikely." Denton, --- U.S. at ----, 112 S.Ct. at 1733; see also Northington v. Jackson, 973 F.2d 1518, 1520 (10th Cir.1992). An IFP lawsuit also may be dismissed under Sec. 1915(d) as legally frivolous if the claims are "based on an indisputably meritless legal theory." Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833; Northington, 973 F.2d at 1520. Dismissal for failure to state a claim under Rule 12(b)(6) and dismissal for frivolousness are not equivalent. "[A] finding of a failure to state a claim does not invariably mean that the claim is without arguable merit." Neitzke, 490 U.S. at 329, 109 S.Ct. at 1833; see also Hall, 935 F.2d at 1108-09.
A
We uphold the district court's dismissal of plaintiff's equal protection claim, because the plaintiff made only conclusory allegations and pleaded no facts that describe any difference between the conditions in disciplinary segregation and administrative segregation. Similarly, we affirm the district court's dismissal of plaintiff's Eighth Amendment claims. "The warden can impose restrictive conditions of confinement upon plaintiff without violating the Eighth Amendment, as long as those conditions do not 'involve the wanton and unnecessary infliction of pain' or are not 'grossly disproportionate to the severity of the crime warranting imprisonment.' " Bailey v. Shillinger, 828 F.2d 651, 653 (10th Cir.1987) (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981)). Plaintiff made no allegations in his complaint indicating that he suffered from wantonly or unnecessarily inflicted
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pain or grossly...
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