Gillihan v. Shillinger, 87-2404
| Citation | 872 F.2d 935 |
| Decision Date | 12 April 1989 |
| Docket Number | No. 87-2404,87-2404 |
| Parties | Gary D. GILLIHAN, Plaintiff-Appellant, v. Duane SHILLINGER; Tom Shanyfelt; and John Bunch, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Gary D. Gillihan, pro se.
Terry L. Armitage, Asst. Atty. Gen., State of Wyo., Cheyenne, Wyo., for defendants-appellees.
Before ANDERSON and TACHA, Circuit Judges, and ROGERS, District Judge. *
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); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.
Plaintiff-appellant appeals the district court's order of September 10, 1987, dismissing his complaint for failure to state a claim, denying his motion to supplement his complaint, denying his motion for summary judgment, and denying his motion for a temporary restraining order, a preliminary injunction, and an order to show cause. Plaintiff commenced the underlying civil rights action pursuant to 42 U.S.C. Sec. 1983 against defendants, who are the warden, the office manager, and the central services unit manager at the Wyoming State Penitentiary in Rawlins, Wyoming.
Plaintiff alleged in his complaint that defendants violated his right to due process and subjected him to cruel and unusual punishment. Specifically, plaintiff stated that in 1985, he was transferred to Arizona from Wyoming at the request of Wyoming prison officials. In April of 1987, at the request of Arizona prison officials, he was returned to Wyoming. Upon his return, defendant Shanyfelt informed plaintiff that he was going to be charged for transportation expenses relating to his return to Wyoming, in the amount of $174.53. Shanyfelt also informed plaintiff that his prison account was going to be frozen until the bill was paid in full.
Plaintiff asserted that by failing to give him notice of the charge until after it was levied and depriving him of an opportunity to refuse the transportation based on his inability to pay for it, defendants deprived him of his right to due process. He stated that he filed an administrative grievance, but defendants Bunch and Shillinger responded by approving the assessment of the charge and the freezing of his account.
Plaintiff also alleged that he was subjected to cruel and unusual punishment. He said that since he was in protective custody and unable to get a job, the bill would remain outstanding against his prison account indefinitely and would render nugatory all support from outside the prison. Furthermore, the prison only provided "bare necessities to maintain human health standards," and due to his lack of funds, he was unable to purchase cigarettes, coffee, and personal hygiene items, thereby being "stripped [of] what little luxury [he] had."
Plaintiff requested declaratory relief, as well as punitive and compensatory damages against each defendant. At the time he filed his complaint, plaintiff also filed a motion to proceed in forma pauperis and a motion for temporary restraining order, preliminary injunction, and order to show cause. He sought to be protected from any retaliation by defendants and to have his prison account unfrozen. The court entered orders on May 11, 1987, granting plaintiff leave to proceed in forma pauperis and denying his other motion.
Thereafter, plaintiff filed a motion to supplement his complaint. He alleged that after he filed his complaint, defendants removed $2.28 from his account, without prior notice or a hearing, in partial payment of the transportation bill. Plaintiff's allegations suggested that the account only contained the $2.28 removed by defendants.
Defendants responded to plaintiff's complaint by filing a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). Defendants asserted that the court should defer to the prison officials' "broad administrative and discretionary authority" in the management of the prison. They also argued that plaintiff had "nothing more than a property right claim," which was not protected by Sec. 1983, and that he had adequate state and administrative remedies for his alleged deprivation of property.
Plaintiff filed both a traverse to the return and a motion for summary judgment. In the former, he asserted that although he was incarcerated, he was not stripped of all constitutional protections, and that his right to own and enjoy property was protected by the fifth and fourteenth amendments. He further asserted that defendants' actions were punitive in nature, and that he was entitled to due process before being subject to such punishment. Furthermore, he argued, he had a liberty interest in being able to purchase items from the commissary and elsewhere as permitted by prison regulation, which defendants violated.
In his motion for summary judgment, plaintiff asserted that defendants, by filing a motion to dismiss, admitted all the facts alleged by plaintiff, and that based upon the traverse to the motion and the exhibits attached to the motion for summary judgment, he was entitled to judgment. The exhibits attached consisted of plaintiff's grievance, as well as correspondence from Shanyfelt and Shillinger concerning the transportation bill. Also attached were notes from an institution classification committee hearing in Arizona finding plaintiff guilty of attempting to escape and threatening the staff through letters, and recommending that he be placed in administrative segregation pending his transfer back to Wyoming.
A few weeks later, plaintiff filed another motion for temporary restraining order, preliminary injunction, and order to show cause, in which he sought an order directing defendants to reopen his account and to refrain from "confiscating" any funds in the account, including those received from persons outside the prison, pending the court's final ruling in the action.
On September 10, 1987, the court entered the order at issue on appeal. The court apparently rejected the arguments of defendants for dismissal, since it denied defendants' motion to dismiss. The court determined, nonetheless, that plaintiff's complaint did not state a claim upon which relief could be granted. The court found that plaintiff had requested the transfer and his own actions were responsible for his being returned to Wyoming, and concluded that it was not unreasonable to require plaintiff to pay some of the costs of the transportation.
On appeal, plaintiff argues that the district court erred in dismissing his complaint because he was entitled to due process before being charged for the transportation costs and having his account frozen, there was no statutory authority for the charge, and the prison manual does not state that an inmate will be charged for the costs of transportation or that his account will be frozen as a result thereof. Plaintiff also asserts that he was denied equal protection under the fourteenth amendment because his account was frozen and those of other prisoners were not. We will not consider on appeal those issues that were not raised in the district court. See Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826, 837 (1976); United States v. Beery, 678 F.2d 856, 861 (10th Cir.1982).
Plaintiff also asserts that the district court abused its discretion in denying his motion to supplement the complaint, and that it erred in denying his motion for summary judgment. Plaintiff does not mention the district court's dismissal of either of his motions for temporary restraining orders, preliminary injunctions, and orders to show cause. We, therefore, must deem the latter abandoned on appeal. See United Transp. Union v. Dole, 797 F.2d 823, 827 (10th Cir.1986). Defendants' arguments on appeal are the same as those asserted below in their motion to dismiss.
We review the district court's dismissal of plaintiff's complaint de novo, since the sufficiency of a complaint is a question of law. See Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir.1986). A complaint should not be dismissed under Fed.R.Civ.P. 12(b)(6) unless the court concludes, as a matter of law, that the plaintiff can prove no facts that would entitle him to relief. Id.
In reviewing a dismissal for failure to state a claim, we presume that all of plaintiff's allegations are true and construe them in the light most favorable to him. Id. See also Meade v. Grubbs, 841 F.2d 1512, 1526 (10th Cir.1988). Furthermore, we construe pro se pleadings liberally and hold them to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652, 654 (1972).
The gravamen of plaintiff's complaint was that he was deprived of his property without due process. To determine whether plaintiff's allegations stated a claim, we must first determine whether plaintiff has a property interest in the funds in his prison account. The record here does not reveal the source of any funds in plaintiff's account. To the extent that they constitute monies received from friends and family outside the prison, plaintiff clearly has a property interest in them. Likewise, it appears that he has a property interest in any wages he has earned or may earn while incarcerated in the Wyoming State Penitentiary.
Pursuant to Wyo.Stat. Sec. 7-16-203 (1977), "[p]ersons in confinement in state institutions may receive compensation for services performed as specified by the board of charities and reform." Pursuant to Wyo.Stat. Sec. 7-16-205 (1977), any such compensation shall be deposited in the prisoner's trust and agency account and shall be disbursed for the reasons, and in the order, specified in subsection (a). The funds may also be subject to fines levied as punishment for misconduct pursuant to rules and regulations promulgated by the charities and reform board in accordance...
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