Cosco v. Lampert

• Decision Date: 26 April 2010
• Docket Number: No. S-09-0106.,S-09-0106.
• Citation: 2010 WY 52,229 P.3d 962
• Parties: Louis D. COSCO, Appellant (Plaintiff), v. Robert O. LAMPERT, Director, Wyoming Department of Corrections; Eddie Wilson, Warden, Wyoming State Penitentiary; Wyoming Department of Corrections, Agency of Wyoming; and State of Wyoming; Appellees (Defendants).
• Court: Wyoming Supreme Court

229 P.3d 962

2010 WY 52

Louis D. COSCO, Appellant (Plaintiff), v. Robert O. LAMPERT, Director, Wyoming Department of Corrections; Eddie Wilson, Warden, Wyoming State Penitentiary; Wyoming Department of Corrections, Agency of Wyoming; and State of Wyoming; Appellees (Defendants).

No. S-09-0106.

Supreme Court of Wyoming.

April 26, 2010.

COPYRIGHT MATERIAL OMITTED

Representing Appellant: Louis D. Cosco, Pro se.

Representing Appellees: Bruce A. Salzburg, Wyoming Attorney General; and John W. Renneisen, Deputy Attorney General.

Before VOIGT, C.J., and HILL, KITE, and BURKE, JJ, and PRICE II, D.J.

HILL, Justice.

¶ 1 Appellant, Louis D. Cosco (Cosco), seeks review of an order of the district court that resolved the two civil actions he filed in that court, in favor of the Appellees. Cosco named several parties as Defendants/Appellees (as shown in the caption) but we will refer to them collectively as the Wyoming Department of Corrections (DOC). We will affirm. As a part of our affirmance we will direct that Cosco may not file any additional claims, which are related in any manner to the subjects of this appeal, in any State court without first obtaining the express permission of this Court to submit any such pleadings to that State court.

ISSUES

¶ 2 Cosco states his issues as follows:

1. Does W.S. 25-1-105(a)¹ violate the constitutions (for due process and equal protection)?

2. Do the laws and constitutions of the State of Wyoming violate the due process and equal protection clauses of both constitutions?

3. Do laws that prevent prisoners from suing prison officials violate the constitution for due process, equal protection and right to petition for redress of grievances?

The DOC rephrases the issues in a manner consistent with the civil actions resolved by the district court, as well as in a manner which comes as close as possible to making sense of the contentions advanced by Cosco in his appellate brief:

1. Did Cosco properly file a governmental claim as required by the Wyoming Governmental Claims Act (WGCA)?

2. Does the WGCA include a waiver of immunity that makes Cosco's claim(s) actionable?

3. Does the lack of a remedy under Wyoming law for Cosco's claims violate either the Wyoming or United States constitutions?

FACTS AND PROCEEDINGS

¶ 3 This appeal arises from two separate claims brought by Cosco in the district court. In each of those claims he asserted that he had been wrongfully deprived of property he owned, by individuals who were employed by the DOC. The district court consolidated the two cases noting that, "the two civil actions pertain to a single event or series of events, and are in large measure duplicative of one another." Thereafter, the district court dismissed both of Cosco's claims with prejudice. The district court reasoned that there was no waiver of governmental immunity that would make relief available for either of Cosco's claims. Moreover, even if such a waiver existed, Cosco had failed to timely file a governmental claim with the proper State entity, as prescribed by the governing statutes.

¶ 4 Cosco's claims allege that, while he was an inmate under the supervision and control of the DOC, at the Wyoming State Penitentiary (WSP), he was wrongfully deprived of property. Although these two claims involve many similar legal questions, they differ with respect to the nature of the property lost or confiscated and the process by which the property came to be lost or confiscated. The first of his two claims arose following the murder of a prison guard at the penitentiary, after which more restrictive inmate property regulations were instituted. As early as 1995, Cosco was notified that the new regulations would not allow him to keep certain personal property, including hobby materials, in his cell. Cosco was notified that his non-complying property would be confiscated and would eventually have to be sent out of the penitentiary by him, to a person of his choice, failing which it would likely be destroyed.

¶ 5 In November 1997, some of Cosco's property was confiscated. In June of 2005, Cosco was notified that his property would be destroyed because he had failed to send it to someone of his choice outside the penitentiary. Cosco submitted a claim form to the DOC asking that he be repaid for the property's value. That claim was received by DOC on September 11, 2007. Of significant importance to this appeal, Cosco does not contend that he submitted a notice of claim as required by Wyo. Stat. Ann. § 1-39-113(c) (LexisNexis 2009), nor was such a claim received by the State:

§ 1-39-113. Claims procedure.

(a) No action shall be brought under this act against a governmental entity unless the claim upon which the action is based is presented to the entity as an itemized statement in writing within two (2) years of the date of the alleged act, error or omission, except that a cause of action may be instituted not more than two (2) years after discovery of the alleged act, error or omission, if the claimant can establish that the alleged act, error or omission was:

(i) Not reasonably discoverable within a two (2) year period; or

(ii) The claimant failed to discover the alleged act, error or omission within the two (2) year period despite the exercise of due diligence.

(b) The claim shall state:

(i) The time, place and circumstances of the alleged loss or injury including the name of the public employee involved, if known;

(ii) The name, address and residence of the claimant and his representative or attorney, if any; and

(iii) The amount of compensation or other relief demanded.

(c) All claims against the state shall be presented to the general services division of the department of administration and information. Claims against any other governmental entity shall be filed at the business office of that entity. In the case of claims against local governments the claim submitted need not be acted upon by the entity prior to suit. Emphasis added.

¶ 6 The second of Cosco's two claims arose when he was transferred by the DOC to Ely State Prison in Nevada on December 21, 2002. Cosco was returned to Rawlins on February 18, 2005. Some of the property Cosco took with him to Nevada was not allowed at that facility and it was sent back to the WSP where it was stored. Some of the stored items Cosco claims were items of religious significance. They included a leather cover for his satanic bible with a satanic medallion, as well as a medallion of Baphomet ("... an idol the Templars were accused of worshipping ..." Webster's Third New International Dictionary, 173 (1986)). At some point in time, the above described items were either destroyed or otherwise went missing. After Cosco's return to the WSP from Nevada, other property being withheld from him was also destroyed or otherwise went missing. Cosco was informed on June 23, 2005, that his confiscated property must be sent to a person of his choice outside the prison or it would be destroyed.

¶ 7 In response to the confiscation and disposal of his property, Cosco submitted several "claims" over the loss of that property. However, as noted above, Cosco had never submitted the claim required by § 1-39-113(c).

STANDARD OF REVIEW

¶ 8 When we review the granting of a summary judgment,

We employ the same standards and use the same materials as were employed and used by the trial court. We examine the record from the vantage point most favorable to the party who opposed the motion, and we give that party the benefit of all favorable inferences that may fairly be drawn from the record. Summary judgment is appropriate only when no genuine issue as to any material fact exists and the prevailing party is entitled to have a judgment as a matter of law. A genuine issue of material fact exists when a disputed fact, if it were proven, would have the effect of establishing or refuting an essential element of the cause of action or defense which the parties have asserted. We review a grant of summary judgment deciding a question of law de novo and afford no deference to the trial court's ruling.

Platt v. Creighton, 2007 WY 18, ¶ 7, 150 P.3d 1194, 1198 (Wyo.2007) (quoting Black v. William Insulation, Co., 2006 WY 106, ¶ 7, 141 P.3d 123, 126-27 (Wyo.2006)).

We will affirm a grant of summary judgment if it can be sustained on any legal ground appearing in the record. Lever v. Community First Bancshares, Inc., 989 P.2d 634, 637 (Wyo.1999) (quoting Duncan v. Town of Jackson, 903 P.2d 548, 551 (Wyo.1995)).

Sheaffer v. State ex rel. Univ. of Wyo., 2009 WY 19, ¶¶ 12-13, 202 P.3d 1030, 1036-37 (Wyo.2009).

DISCUSSION

Applicability of WGCA

¶ 9 In Wyoming, no suit may be maintained against the State unless the legislature has authorized such a suit. Wyo. Stat. Ann. §§ 1-39-101 through 121 (LexisNexis 2009); and see May v. Southeast Wyo. Mental Health Center, 866 P.2d 732, 736 (Wyo. 1993). The WGCA does not provide an exception to the rule of immunity for the claims pressed by Cosco. Furthermore, Cosco has failed to demonstrate that the claims he did file met the stringent requirements of the WGCA. Cosco has brought his claims against the State of Wyoming generally, the DOC, and two former and present employees of the DOC/WSP. However, he has failed to establish that the WGCA has waived immunity for any of those claims. We have carefully examined Cosco's pleadings, as well as the carefully circumscribed exceptions the legislature has established to the rule of immunity, including the one addressed to "peace officers," and we agree with the district court and the Attorney General that Cosco's claims, as articulated in his detailed pleadings, are not cognizable under any of the exceptions to the rule of immunity.

¶ 10 Furthermore, we have consistently construed the procedural requirements set out in the WGCA very strictly and as jurisdictional requirements. Viewing Cosco's claims in the light most favorable to him we are compelled to agree with the district court...