Frazier v. Flores et al

Filing 26

ORDER dismissing this action, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 12/3/13. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-00891-BNB
KEITH FRAZIER,
Plaintiff,
v.
P. FLORES, 2 Unit Manager, CCCF,
P. PACHECO, Chief of Unit Management, CCCF,
C. AMATO, Correctional Officer, CCCF,
P. CORONA, Correctional Officer, CCCF,
A. HARRIS, Correctional Officer, CCCF,
SMELSER, Warden, CCCF,
R. SELMAN, Assistant Warden, CCCF, and
A. DeCESARO, Step 3 Grievance Officer, CDOC,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Keith Frazier, is a prisoner in the custody of the Colorado Department of
Corrections (DOC) at the Crowley County Correctional Facility in Olney Springs,
Colorado. Mr. Frazier has filed pro se a Prisoner Complaint (ECF No. 1) pursuant to 42
U.S.C. § 1983 claiming that his rights under the United States Constitution have been
violated.
Mr. Frazier has been granted leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. Therefore, the Court must dismiss the action if Mr. Frazier’s claims are
frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i). A legally frivolous claim is one in which the
plaintiff asserts the violation of a legal interest that clearly does not exist or asserts facts
that do not support an arguable claim. See Neitzke v. Williams, 490 U.S. 319, 327-28

(1989). For the reasons stated below, the Court will dismiss the action as legally
frivolous.
The Court must construe the Prisoner Complaint liberally because Mr. Frazier is
not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). If the Prisoner Complaint
reasonably can be read “to state a valid claim on which the plaintiff could prevail, [the
Court] should do so despite the plaintiff’s failure to cite proper legal authority, his
confusion of various legal theories, his poor syntax and sentence construction, or his
unfamiliarity with pleading requirements.” Hall, 935 F.2d at 1110. However, the Court
should not be an advocate for a pro se litigant. See id.
Mr. Frazier claims in the Prisoner Complaint that his constitutional right to due
process was violated when Defendants confiscated and destroyed his personal
property. He alleges in support of this claim that his prison cell was searched on June
14, 2011, and that officers removed a plastic bag with a large amount of his
possessions. Among the items taken was a manila envelope that contained music
industry research material including weekly charts, album reviews, artist interviews,
special articles, features, and photographs culled from magazines and newspapers to
which he subscribed as well an order form and printed descriptions of books and DVDs
available for purchase from the Edward R. Hamilton Bookseller Company. According to
Mr. Frazier, he intended to use the research material to write a book. The due process
claim in the Prisoner Complaint relates solely to the confiscation and subsequent
destruction of the research material in the manilla envelope. As relief Mr. Frazier seeks
damages in the amount of $2,660.00, which is the amount he estimates is necessary to
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obtain back issues of the magazines and newspapers from which he had obtained the
research material in the manilla envelope.
Mr. Frazier asserts the due process claim against eight individuals. He
specifically alleges that Defendants C. Amato, P. Corona, and A. Harris searched his
cell and confiscated the manila envelope. He asserts that Defendant P. Flores
explained to him that the research material in the manilla envelope was confiscated as
contraband because the items were altered and no longer attached to the original
publications even though Mr. Frazier argued that the contraband rule does not apply to
reading material. He further asserts that Defendant Flores rejected his request to mail
the items to someone outside of the facility and, instead, threw away the research
material the following day. Mr. Frazier contends that he filed a lost/damaged property
claim that was denied by Defendants Flores and Smelser. Mr. Frazier also exhausted
the DOC administrative grievance procedure with respect to the confiscation and
destruction of his research material and his grievances were denied by Defendants
Pacheco, R. Selman, and A. DeCesaro.
The United States Constitution guarantees due process only when a person is to
be deprived of life, liberty, or property. See Templeman v. Gunter, 16 F.3d 367, 369
(10th Cir. 1994). Although Mr. Frazier alleges that he was deprived of personal property,
he fails to allege facts that demonstrate he was deprived of a constitutionally protected
property interest without adequate due process.
If the research material in the manilla envelope that is the subject of Mr. Frazier’s
due process claim was contraband as prison officials determined, Mr. Frazier does not
have a protected property interest. See Steffey v. Orman, 461 F.3d 1218, 1221-23 (10th
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Cir. 2006); Kunze v. Bertsch, 477 F. Supp.2d 1038, 1053 (D.N.D. 2007). Thus, if the
research material was contraband, Mr. Frazier is not entitled to any procedural
protections under the Due Process Clause and the due process claim must be
dismissed.
Even if Mr. Frazier is correct in arguing that the research material was not
contraband under the relevant prison regulations and that he was deprived of a
constitutionally protected interest in that property, the due process claim still fails. Mr.
Frazier argues that the confiscation of his research material was not authorized by
prison regulations. However, “neither negligent nor intentional deprivations of property
under color of state law that are random and unauthorized give rise to a § 1983 claim
where the plaintiff has an adequate state remedy . . . .” Gillihan v. Shillinger, 872 F.2d
935, 939 (10th Cir. 1989), overruled on other grounds by Clark v. Wilson, 625 F.3d 686,
691 (10th Cir. 2010); see also Hudson v. Palmer, 468 U.S. 517, 533 (1984) (holding that
an unauthorized intentional deprivation of property by a state employee does not violate
due process if an adequate postdeprivation remedy for the loss is available).
A prison grievance procedure is an adequate post deprivation remedy if the
grievance procedure provides a meaningful remedy. See Hudson, 468 U.S. at 536 &
n.15; Williams v. Morris, 697 F.2d 1349, 1351 (10th Cir. 1982) (per curiam). According
to the DOC grievance procedure, which is available on the DOC website, the definition
of “remedy” includes “restoration of or restitution for property.” See DOC Administrative
Regulation 850-4, Grievance Procedure at III.J. Therefore, the Court finds that the DOC
grievance procedure provides a meaningful remedy with respect to Mr. Frazier’s
property deprivation claim. In addition, Mr. Frazier does not allege facts that
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demonstrate the DOC grievance procedure was unresponsive or inadequate in any
way. See Durre v. Dempsey, 869 F.2d 543, 548 (10th Cir. 1989) (“In order to state a
[due process] claim under § 1983 [for intentional deprivation of property], a complaint
must allege facts sufficient to show deprivation, in this case the lack of an adequate
state remedy.”). The fact that Mr. Frazier did not obtain the relief he sought through the
DOC grievance procedure is not sufficient to show that the process was unavailable or
inadequate. See Allen v. Reynolds, 475 F. App’x 280, 283 (10th Cir. 2012).
Even if the DOC grievance procedure is not an adequate postdeprivation
remedy, the Court also must consider whether an adequate postdeprivation remedy
exists in state court. See, e.g., Cooper v. Belcher, 2010 WL 3359709 at *15 (D. Colo.
Aug.25, 2010) (unpublished) (noting that “[a]dequate state remedies are not limited to
the filing of grievances, but include filing complaints in state court.”). Mr. Frazier
concedes that he filed an action in Colorado state court challenging the allegedly
unlawful confiscation and destruction of his property and that the state court action was
dismissed with prejudice. (See ECF No. 1 at 9.) He does not allege any facts that
demonstrate the remedy available in state court was unavailable or inadequate and the
fact that he did not obtain the relief he sought in the state court action does not
demonstrate the state court remedy was unavailable or inadequate.
For all of these reasons, the Court finds that Mr. Frazier cannot state an arguable
due process claim based on the confiscation and destruction of music industry research
material. Therefore, the action is legally frivolous and must be dismissed. The Court
also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would
not be taken in good faith and therefore in forma pauperis status will be denied for the
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purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If Plaintiff
files a notice of appeal he also must pay the full $505 appellate filing fee or file a motion
to proceed in forma pauperis in the United States Court of Appeals for the Tenth Circuit
within thirty days in accordance with Fed. R. App. P. 24. Accordingly, it is
ORDERED that the Prisoner Complaint and the action are dismissed as legally
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied without prejudice to the filing of a motion seeking leave to proceed in forma
pauperis on appeal in the United States Court of Appeals for the Tenth Circuit.
DATED at Denver, Colorado, this

3rd

day of

December

, 2013.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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