Coburn v. Wilkinson, 10th Cir. (2017)
Coburn v. Wilkinson, 10th Cir. (2017)
Coburn v. Wilkinson, 10th Cir. (2017)
Plaintiff - Appellant,
v. No. 16-7076
(6:15-00195-RAW-SPS)
TIM WILKINSON, Warden, Davis (E.D. Okla.)
Correctional Facility, a/k/a Tim Wilkens;
MRS. CARTWRIGHT, Property Officer;
MS. MORRISON, Property Officer,
Defendants - Appellees.
_________________________________
Chad A. Coburn, a state prisoner appearing pro se, appeals the dismissal of a
1983 action. Coburn alleges that his constitutional rights were violated when prison
employees deprived him of his rights to due process and equal protection. Because
we conclude that Coburn has received the full extent of due process to which he was
entitled, and because he has failed to allege sufficient facts to support an equal-
protection claim, we affirm the district courts ruling and dismiss this appeal.
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited however, for
its persuasive value consistent with Federal Rule Appellate Procedure 32.1 and 10th
Circuit Rule 32.1.
BACKGROUND
Oklahoma, was removed from his job in the prison-facility kitchen for misbehavior.
verbal orders, theft, and threatening another with harm, and was escorted to the
over her radio that Coburn was being moved to segregation. As part of her
in his cell, numbered AS 108, until she could pack and inventory his property.
Cartwright then inventoried Coburns property by listing his belongings on the prison
facilitys Personal Property Receipt form, noted that the belongings were in cell
number AS 108, and gave the form to Coburn for his review. Coburn signed the form
that day and was admitted to the segregation unit. On September 29, 2014, Coburn
was discharged from the segregation unit and signed the form again.
Property Claim forms, alleging that some of his property1 had been stolen or lost. Id.
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Coburn alleged that an RCA Remote was lost or damaged and the
following were stolen: New Sangean Clear, Head Phones with Bud Koss, Head
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at 51-56. Cartwright, acting as the Property Supervisor, investigated and denied the
claims, noting that she had personally inventoried and collected Coburns property.
Warden Tim Wilkinson reviewed the claims and approved the denial. Coburn then
filed a Denied Property Claim Appeal with Warden Wilkinson, who reviewed and
Coburn then filed a civil rights complaint against prison officials in federal
court under 42 U.S.C. 1983, alleging a violation of his due-process rights and his
rights to equal protection under the Fourteenth Amendment. At the district court,
Coburn argued that prison officials had neglected their own polic[ie]s and
procedures and protocol and failed to do the[ir] JOB. [W]hich created a neglecting of
offenders property interest. Id. at 8. Specifically, Coburn argued that prison officials
had inventoried and noted the wrong cellFC 209when Coburn was in fact housed
in AS 108. Coburn also alleged that prison officials . . . pick [and] choose people
who they want to help and not help. Id. at 17. In his complaint, Coburn asserted that
Coburn did not allege that the administrative process was defective.
Prison officials filed a motion to dismiss the claim under 42 U.S.C. 1997e(a)
and Federal Rules of Civil Procedure Rule 12(b)(6), arguing that Coburn had failed
to state a claim upon which relief could be granted. Attacking the violation-of-due-
process claim, prison officials argued that Coburn had received and signed the
Phone [Extension], Hot Pot, Electrical Power Bar, [three] Pair[s] of Dickies Blue 36
36, Brown Boots, Air Jordans, Gold Chain with cross. R. at 51, 55.
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property inventory sheet, had not provided any evidence of ownership of the items
claimed on the Lost/Damaged/Stolen Property Claim, and had received the full
measure of due process to which he was entitled. Id. at 80-82. Prison officials
commented that Coburn may be upset that his claim was denied, but he was not
denied access to the process. Id. at 82. Regarding Coburns claim of a denial of
equal protection, prison officials argued that Coburn did not provide sufficient facts
and that his allegations were self-serving, vague, and conclusory. Id. at 83.
The district court agreed and granted the motion to dismiss. The district court
found that the prison facility had a clear process in place to address the loss of inmate
property, noting that Coburns claims were submitted, investigated, and denied, and
that the warden had reviewed and approved the denial. The court also found that the
Personal Property Receipt form had noted the correct cell numberAS 108and
that Coburn acknowledged the form by signing it twice. Id. at 141-42. Further, the
district court found that Coburn had received the full measure of due process to
which he was entitled, noting that the fact that his claim was denied does not equate
to a denial of due process. Id. at 143. As for Coburns equal-protection claim, the
district court noted that a plaintiff must allege that he was treated differently because
of a suspect classification, which Coburn had not done. The court concluded that
Coburn had failed to allege sufficient facts and that his claim was vague and
conclusory, and thus failed to state an equal protection claim. The district court
dismissed Coburns complaint for failure to state a claim and counted it as his first
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DISCUSSION
I. Standard of Review
Corrections, 165 F.3d 803, 806 (10th Cir. 1999). We apply the same standard of
Procedure Rule 12(b)(6) motions. Kay v. Bemis, 500 F.3d 1214, 1217-18 (10th Cir.
2007). Despite this similarity, dismissing a pro se complaint for failure to state a
claim under 1915(e)(2)(B)(ii) is proper only where it is (1) obvious that the
plaintiff cannot prevail on the facts he has alleged, and (2) it would be futile to give
support a legal claim for relief. Kay, 500 F.3d at 1218 (internal quotation marks
above the speculative level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Because Coburn is a pro se litigant, we construe his pleadings liberally, but we do not
serve as his advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
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Turning now to Coburns complaints, we find that he cannot prevail on the facts
A. Due Process
life, liberty, or property, without due process of law. U.S. Const. amend. XIV, 1.
A state must not deprive a person of life, liberty or property unless fair procedures
are used in making that decision. Copelin-Brown v. New Mexico State Pers. Office,
399 F.3d 1248, 1254 (10th Cir. 2005) (quoting Archuleta v. Colo. Dept of Insts.,
Div. of Youth Servs., 936 F.2d 483, 490 (10th Cir. 1991)). The Supreme Court has
available. Hudson v. Palmer, 468 U.S. 517, 533 (1984). Inmate grievance
property. Id. at 536 n.15. A violation of due-process procedures exists if the post-
list of his belongings that Cartwright had assembled. Coburn argues that Cartwright
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inventoried the wrong cell, yet the proper cell number is noted on the top of the form
and Coburn signed the form twice, acknowledging receipt. When Coburn then
submitted, investigated, and reviewed by the warden. It was denied. Coburn then
filed an appeal that was also denied. Coburn doesnt provide evidence that the
process was unresponsive or inadequate. Thus, we find that Coburn received the full
measure of due process to which he was entitled. We agree with the district court that
a denial of an appeal does not amount to a denial of due process. We therefore find
B. Equal Protection
The Fourteenth Amendment also prohibits a state from denying any person
within its jurisdiction the equal protection of the laws. U.S. Const. amend. XIV, 1.
To state a successful claim under the Equal Protection Clause, Coburn must prove
that [he was] treated differently from others who were similarly situated to [him].
Brown v. Montoya, 662 F.3d 1152, 1772-73 (10th Cir. 2011) (internal quotation
marks omitted). Thus, Coburn must show that he was treated differently from other
rationality. Brown v. Zavaras, 63 F.3d 967, 971 (10th Cir. 1995). Furthermore, pro
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se litigants must do more than make mere conclusory statements regarding
Here, Coburns brief lacks any valid argument supporting a violation of the
Equal Protection Clause of the Fourteenth Amendment. At the district court, Coburn
argued that prison officials would pick [and] choose people who they want to help
and not help. R. at 17. He also asserted that prison officials acted with malice
intent and in reckless ways. Id. Coburn does not provide any evidence beyond
these conclusory statements and does not allege sufficient facts supporting these
appeals under ifp status if the prisoner has, on three or more occasions, brought an action
or appeal that was dismissed because it was frivolous, malicious, or fails to state a claim
upon which relief may be granted, unless the prisoner is under imminent danger of
serious physical injury. For his claims at the district court, Coburn was assessed his first
strike under 1915(g). We now assess a second strike for this frivolous appeal. See
Jennings v. Natrona Cty. Det. Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir. 1999) (If
we dismiss as frivolous the appeal of an action the district court dismissed under 28
by Coleman v. Tollefson, 135 S. Ct. 1759, 1763-64 (2015)). We urge Coburn to consider
more carefully when to file lawsuits and appeals, so that if more meritorious
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circumstances ever arise for a civil suit in federal court, ifp status will not be
CONCLUSION
For the reasons stated, we affirm the district courts judgment granting the
appellees motion to dismiss and assess a second strike under 28 U.S.C. 1915(g).
Although the district court dismissed the action under 1915(e)(2)(B)(ii), it granted
remind Coburn of his continuing obligation to make partial payments on his filing fee
until the entire fee has been paid. See 28 U.S.C. 1915(b).
Gregory A. Phillips
Circuit Judge