Durre v. Dempsey
| Decision Date | 28 February 1989 |
| Docket Number | No. 87-2367,87-2367 |
| Citation | 869 F.2d 543 |
| Parties | Edgar Lee DURRE, Plaintiff-Appellant, v. John DEMPSEY, Acting Director Colorado Dept. of Corrections; Bill Wilson, Superintendent; Carlos Baca, Superintendent; Capt. C.A. Linam, Security Officer; Sgt. D.L. Orndorff, Property Officer; Capt. Rex Worley, Housing Capt.; Major Cox; Lt. J.J. Leonard, Housing Officer; Lt. James Akins, Case Manager; Mark McGoff, Superintendent; Major Charlie Watson; Capt. Juanita McIntyre; Lt. Fred Nelson; Thomas I. Cooper; R.W. Henson; Major Spurlock; Capt. Irving G. Jaquez; Capt. D.J. Erps; Officer Beccaccia; Lt. Jos Aragon, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before MOORE, BRORBY and EBEL, Circuit Judges.
Plaintiff, an inmate in the custody of the Colorado Department of Corrections, commenced this action pursuant to 42 U.S.C. Sec. 1983 against employees of the Department of Corrections. Plaintiff alleged defendants, through a series of incidents occurring during plaintiff's confinement in three different Colorado correctional facilities, conspired to violate plaintiff's constitutional rights guaranteed by the sixth, eighth, and fourteenth amendments. The district court dismissed the action. Plaintiff appeals. 1
The district court dismissed several of plaintiff's claims without prejudice, holding these claims were included in the subject matter of a class action to which plaintiff is a party, Marioneaux v. Colorado State Penitentiary, No. 78-K-1065 (D.Colo). Plaintiff asserted claims alleging defendants violated plaintiff's right to due process by improperly conducting a disciplinary hearing in April, 1986, placing plaintiff in administrative segregation without a hearing, and failing to conduct a regression hearing before reclassifying plaintiff and transferring him to another facility. These claims are part of the subject matter of the Marioneaux class action, to which plaintiff is a party as an inmate in the custody of the Colorado Department of Corrections as of March 18, 1985. Stipulation, Marioneaux, No. 78-K-1065 (D.Colo. April 2, 1985). The district court properly dismissed these claims without prejudice, allowing plaintiff to seek redress through the class action.
Plaintiff also alleged defendants, in October, 1986, violated plaintiff's due process rights by improperly conducting a disciplinary hearing which resulted in a determination that plaintiff had violated prison regulations. Ordinarily, this claim would also be included within the subject matter of Marioneaux. Plaintiff, however, further asserted prison officials reversed the hearing officer's determination on administrative appeal. The district court, therefore, properly dismissed this claim as moot.
The district court dismissed plaintiff's remaining claims with prejudice for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). This court will review de novo a district court's dismissal pursuant to Rule 12(b)(6). Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir.1986). Dismissal under Rule 12(b)(6) is appropriate only if plaintiff can prove no set of facts in support of his claim which would entitle plaintiff to relief. Id. In reviewing the district court's dismissal, we accept as true plaintiff's allegations, which will be construed in the light most favorable to the plaintiff. Meade v. Grubbs, 841 F.2d 1512, 1526 (10th Cir.1988). Because plaintiff was proceeding pro se, this court will liberally construe his pleadings. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972).
In order to state a valid cause of action pursuant to Sec. 1983, plaintiff must allege defendants deprived plaintiff of a right secured by the Constitution and laws of the United States while defendants were acting under color of state law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970); Meade, 841 F.2d at 1526. Plaintiff's Sec. 1983 claims satisfied the "under color of state law" requirement. See Parratt v. Taylor, 451 U.S. 527, 535-36, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 664-65, 88 L.Ed.2d 662 (1986).
Plaintiff alleged defendants conspired to deprive plaintiff of his constitutional rights. Because plaintiff failed to allege specific facts showing agreement and concerted action among defendants, the district court properly dismissed the conspiracy claim with prejudice. See Sooner Prods. Co. v. McBride, 708 F.2d 510, 512 (10th Cir.1983). Conclusory allegations of conspiracy are insufficient to state a valid Sec. 1983 claim. Id.
Plaintiff alleged defendant Orndorff, a Department of Corrections property officer, wrongfully confiscated plaintiff's belongings and deliberately destroyed several items of plaintiff's property in violation of plaintiff's right to due process. The district court ruled, because adequate state post-deprivation remedies existed through which plaintiff could assert a claim for the loss of his property, this claim failed to state a cause of action for the denial of due process.
The complaint in this case is sixteen pages long. The allegations of deprivation of property read as follows:
In the process of prowling through plaintiffs [sic] property for five days, [Defendant Sgt. Orndorff] wantonly, willfully and with malace [sic] destroyed $60.00 worth of legal binders bought by plaintiff to preserve his legal case files. Thus rendering them completely useless.... And upon completion of defendants [sic] harrassment [sic] tactics, the plaintiff was missing twenty nine soda pop tokens.... That is a theft of $10.15. All of this as a harrassment [sic] is in violation of plaintiffs [sic] due process and equal protection rights.
There was no allegation in the complaint concerning indigency, lack of counsel, or refusal by the state to allow plaintiff to present his claims in state court.
A United States magistrate reviewed plaintiff's lengthy complaint and entered his conclusions and recommendations in an eleven-page report. Concerning the above allegations, the magistrate said:
In Hudson v. Palmer, 468 U.S. 517 [104 S.Ct. 3194, 82 L.Ed.2d 393] (1984), the Supreme Court decided that intentional deprivations of property as well do not constitute Fourteenth Amendment violations if adequate state post-deprivation remedies are available. Id. at 533 . Colorado law provides such a remedy at Colo.Rev.Stat. Sec. 24-10-106 , when property is wrongfully taken or negligently misplaced by a state official. Therefore, the complaint fails to state a claim under 42 U.S.C. Sec. 1983 against defendant ORNDORFF and must be dismissed in accordance with Fed.R.Civ.P. 12(b)(6). If he feels so inclined, plaintiff can pursue his Colorado statutory claim procedures.
The plaintiff then filed nine pages of objections to the magistrate's recommendations. Concerning the alleged deprivation of property, plaintiff stated:
The Magistrate at pages 10 and 11 finds that the intentional deprivation of property by the defendants, not withstanding [sic] that the deprivation is a part of the ongoing acts by the defendants against the plaintiff is governed by application of an adequate post deprivation remedy as purportedly contained in C.R.S. 24-10-106 ; (PAGE 11). Stated quite simply does C.R.S. 24-10-106 provide such a remedy on the facts of this case, that PARRATT V. TAYLOR, 451 U.S. 517 [sic] [527, 101 S.Ct. 1908, 68 L.Ed.2d 420] forecloses determination of this issue in this Court as suggested by the Magistrate. (page 11)
Relying on COLEMAN V. FAULKNER, 697 F.2d 1347 (10th Cir. [1982] Plaintiff claims that the state remedy available in Colorado is inadequate because plaintiff is indigent; cannot retain counsel; the State will not provide counsel in civil cases for such a proceedings [sic], and Colorado State Prison Authorities will not allow the plaintiff to appear in civil actions in their own behalf. Further attempts to avail themselves of such remedies in Colorado Courts by pro-se [sic] litigants is continually rebuffed by the Colorado Courts. The posture of this matter thus is simply not developed in a manner that permits a summary denial of the property claims herein, until sufficient facts are developed to show that the remedy is inadequate. The vitality of COLEMAN appears untouched evenly, DANIELS V. WILLIAMS, 106 S.Ct. 662, and in any event COLEMAN remains the law of the Tenth Circuit and on the basis of stare decisis this Court should follow its lead.
The district court, in its five-page, well written and reasoned opinion, adopted the magistrate's report and stated concerning this issue:
Intentional deprivations of property do not constitute Fourteenth Amendment violation if adequate state post-deprivation remedies are available. Hudson v. Palmer, 468 U.S. 517 [104 S.Ct. 3194, 82 L.Ed.2d 393] (1984). Colo.Rev.Stat. Sec. 24-10-106 provides a remedy when property is wrongfully taken by a state official. Thus, the Magistrate found that the claim against defendant Orndorff must be dismissed. Plaintiff asserts that the state remedies available for the deprivation of his property are "inadequate because plaintiff is indigent; cannot retain counsel; the State will not provide counsel in civil cases for such a proceedings, and Colorado State Prison Authorities will not allow the plaintiff to appear in civil actions." The availability of free counsel in Colorado State Court does not affect the existence of his state statutory remedy. Further, plaintiff is entitled to file suit in Colorado State Court regardless of whether he is being held in custody. Accordingly, the claims against defendant Orndorff were properly dismissed.
When we review dismissal of a complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6), we must accept the plaintiff's allegations as true. Meade, 841 F.2d at 1526. We also...
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