13 F.3d 1439 (10th Cir. 1994), 92-4196, Abbott v. McCotter

Docket Nº:92-4196.
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, Court of Appeals for the Tenth Circuit
 
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13 F.3d 1439 (10th Cir. 1994)

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. Woolston, Brent S. Wiechman, Dan Hutson, John

Piatt, Defendants-Appellees.

No. 92-4196.

United States Court of Appeals, Tenth Circuit

January 18, 1994

Page 1440

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...

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