Tennyson v. Carpenter ( 2014 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 18, 2014
Elisabeth A. Shumaker
Clerk of Court
AUDREY LEE TENNYSON,
Plaintiff - Appellant,
v. No. 13-1338
(D.C. No. 1:13-CV-00648-LTB)
MATTHEW CARPENTER, Chief of (D. Colo.)
Unit Managers; ROBERT SPARKS, Unit
Manager; “THE SUPERIORS,” Identities
Not Yet Known; VANCE EVERETT,
K.C.C.C. Warden; KIT CARSON
CORRECTIONAL CENTER, Private
Prison; ROGER WERHOLTZ, C.D.O.C.
Executive Director,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before KELLY, ANDERSON, and MATHESON, Circuit Judges.
Audrey Lee Tennyson, a Colorado state prisoner, filed a pro se civil rights
action asserting claims under 42 U.S.C. §§ 1983, 1985, and 1986; the Religious Land
*
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)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. §§ 2000cc to
2000cc-5; and state law. He alleged constitutional violations under the First, Eighth,
and Fourteenth Amendments. The district court sua sponte dismissed his amended
complaint as legally frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). We have
jurisdiction under 28 U.S.C. § 1291. Because we hold that some of Mr. Tennyson’s
claims are not legally frivolous, we affirm in part and reverse in part the district
court’s judgment and remand for further proceedings.
I. BACKGROUND
A. Facts Alleged in the Amended Complaint
During a facility shakedown at the Kit Carson Correctional Center (“KCCC”)
in November 2011, defendant Robert Sparks searched Mr. Tennyson’s cell and
removed several items, including two three-ring binders. Mr. Tennyson was a
member of the prison choir called the “Praise Team.” The prison chaplain had given
him the binders to store his choir music and had authorized Mr. Tennyson in writing
to keep them in his cell. A subsequent policy change prohibited choir members from
keeping the binders in their cells, so they were confiscated in the shakedown.
In his amended complaint, Mr. Tennyson did not challenge the confiscation of
his choir binders. His suit instead concerned his personal property and the alleged
retaliation he suffered when he used the prison grievance process to try to retrieve
that property.
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Mr. Tennyson had displayed family photos under the binders’ clear plastic
covers. During the shakedown, Officer Sparks removed most of Mr. Tennyson’s
personal photos from the binders and left them in the cell. But Mr. Tennyson noticed
a picture of his daughter in her graduation gown was not among the photos Officer
Sparks left behind. Officer Sparks refused Mr. Tennyson’s request to double check
the confiscated binders for the missing photo.
Mr. Tennyson filed a step-one grievance, seeking return of the graduation
photo. Officer Sparks responded that he had carefully removed all of
Mr. Tennyson’s personal photos before confiscating the binders. Mr. Tennyson then
filed a step-two grievance, which defendant Matthew Carpenter denied, stating that
Mr. Tennyson had provided no evidence that his missing photo was located in one of
the binders. Officer Carpenter also asserted that, if Mr. Tennyson was missing a
photo, it was due to his own misconduct in using the chaplain-issued binders for a
non-choir purpose. He claimed the chaplain had repeatedly asked Mr. Tennyson to
return the binders and had not given anyone permission to use them for other
purposes.
Although his choir binders had been confiscated two months earlier in the
shakedown, Mr. Tennyson alleged that step-two decision was the first time Officer
Carpenter had accused him of any misconduct related to them. Contrary to Officer
Carpenter’s allegation, Mr. Tennyson claimed that no restrictions had been placed on
the choir members’ personalizing their music binders. He alleged that he and other
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Praise Team members had been displaying their personal photos in their binders for a
year or more, with no accusation of misconduct. And he asserted that the choir
members would have stopped that practice had they been told to do so.
Five days after Officer Carpenter denied his step-two grievance, Mr. Tennyson
was suspended from the Praise Team. The chaplain told Mr. Tennyson that
“Superiors” had informed him that Mr. Tennyson had been found guilty of misusing
his choir binders as photo albums, and they had recommended that the chaplain
impose the maximum penalty for a choir member’s misconduct. The chaplain said
that Mr. Tennyson’s misconduct had come to his attention because of the step-two
grievance that Mr. Tennyson had filed. When Mr. Tennyson tried to explain, the
chaplain said he had been directed to discipline Mr. Tennyson and that his hands
were tied. Mr. Tennyson alleged he was the only choir member penalized for
conduct all choir members had engaged in. He also was the only African American
on the Praise Team.
Mr. Tennyson claimed his use of the prison’s grievance process caused him to
be disciplined. He alleged that Officer Carpenter and the Superiors found him guilty
based upon Officer Carpenter’s allegation of misconduct, which was combined with
his denial of Mr. Tennyson’s step-two grievance. Then he was disciplined without
notice or a meaningful opportunity to be heard.
Mr. Tennyson further alleged that, fearing more penalties, he almost
abandoned his right to file a step-three grievance. But he chose to take that risk to
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retrieve his treasured photo. In his step-three grievance, Mr. Tennyson disputed
Officer Carpenter’s claim that he had misused his choir binders. He also noted that
he had been removed from the Praise Team after initiating the grievance process.
Three months after the shakedown, and while his step-three grievance was
pending, two photos belonging to Mr. Tennyson—his daughter’s graduation photo
and one other—were slid under his cell door in a makeshift envelope, with no
indication of who delivered them or where they came from. Mr. Tennyson’s
step-three grievance was subsequently denied.
Mr. Tennyson then initiated a new grievance. This time he claimed retaliation
based on exercise of his First Amendment right to use the grievance process. He also
alleged a violation of his First Amendment right to participate in the Praise Team.
This new grievance was denied as well.
B. Procedural History
Mr. Tennyson filed this pro se action in March 2013 and amended his
complaint once per the district court’s order. He named as defendants KCCC,
Officer Sparks, and Officer Carpenter, as well Vance Everett, the Warden of KCCC,
and Roger Werholtz, a former interim Executive Director of the Colorado
Department of Corrections (“CDOC”). He also brought claims against unknown
individuals, identifying them only as “the Superiors” who, with Officer Carpenter,
were responsible for disciplining Mr. Tennyson. He sought damages and declaratory
and injunctive relief. For purposes of his § 1983 claims, Mr. Tennyson alleged that
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KCCC is a private detention facility clothed with the authority of CDOC, and that the
individual defendants were acting under the color of state law. 1
After granting Mr. Tennyson leave to proceed in forma pauperis under
28 U.S.C. § 1915, the court sua sponte dismissed his amended complaint as legally
frivolous under § 1915(e)(2)(B)(i) and entered judgment against him. The court
subsequently denied his motion to amend the judgment. Mr. Tennyson filed a timely
notice of appeal.
II. STANDARDS OF REVIEW
“We generally review a district court’s dismissal of a complaint for
frivolousness under § 1915(e) for an abuse of discretion.” Milligan v. Archuleta,
659 F.3d 1294, 1296 (10th Cir. 2011). We review de novo a frivolousness
determination that turns on an issue of law. Id. “Dismissal for frivolousness is only
appropriate for a claim based on an indisputably meritless legal theory.” Id. (internal
quotation marks omitted). Claims should not be dismissed with prejudice unless
“amendment would necessarily be futile.” Id. “In determining whether dismissal is
proper, we accept the allegations in the complaint as true and construe those
allegations and any reasonable inferences therefrom in the light most favorable to
[Mr. Tennyson].” French v. Adams Cnty. Detention Ctr., 379 F.3d 1158, 1159
1
See Smith v. Cochran, 339 F.3d 1205, 1213-15 (10th Cir. 2003) (affirming
denial of qualified immunity on Eighth Amendment claim where “important
penological responsibilities” had been delegated by the state to the defendant, a
private individual).
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(10th Cir. 2004). Because Mr. Tennyson is proceeding pro se, we liberally construe
both his amended complaint and his arguments on appeal. See Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991) (recognizing pro se litigant’s pleadings are
“held to a less stringent standard”); Cummings v. Evans, 161 F.3d 610, 613 (10th Cir.
1998) (liberally construing pro se appellate brief).
III. DISCUSSION
A. Non-Frivolous Claims
The district court erred in concluding that some of Mr. Tennyson’s claims are
legally frivolous. His claims under RLUIPA and the First Amendment, his claim of
retaliation for constitutionally protected activity, and his equal protection claim do
not present indisputably meritless legal theories. Mr. Tennyson brought these claims
against Officer Carpenter and the Superiors. We reverse the court’s dismissal of
these claims and remand for further proceedings.
1. First Amendment and RLUIPA
Mr. Tennyson alleged in his amended complaint that he is a devout Christian
and that he had been an active and upstanding member of the Praise Team for over
three years before he was suspended from the choir. He alleged that singing and
worshiping as a member of the choir is “his response to the dictates of God” and that
part of his ministry was to help lead the congregation “into experiencing God’s
presence through song and worship.” R. at 82-83. Mr. Tennyson claimed that
Officer Carpenter and the Superiors violated his First Amendment rights and
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RLUIPA by causing him to be suspended from the Praise Team based on a pretextual
allegation of misconduct. He asserted that his removal from the choir constituted an
unreasonable curtailment of and substantially burdened his ability to freely exercise
his religion.
“It is well-settled that inmates retain protections afforded by the First
Amendment, including its directive that no law shall prohibit the free exercise of
religion.” Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (internal quotation
marks, brackets, and ellipsis omitted). But prison officials’ legitimate penological
interests may nonetheless justify a limitation on religious exercise. See id. Under
RLUIPA:
No government shall impose a substantial burden on the religious
exercise of a person residing in or confined to an institution . . . even if
the burden results from a rule of general applicability, unless the
government demonstrates that imposition of the burden on that person--
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling
governmental interest.
42 U.S.C. § 2000cc-1(a)(1)-(2). To assert a free-exercise claim under the First
Amendment or a violation of RLUIPA, a prisoner must allege a substantial burden on
his or her sincerely held religious beliefs. See Kay, 500 F.3d at 1218 (addressing
sufficiency of allegations under Free Exercise Clause); Abdulhaseeb v. Calbone,
600 F.3d 1301, 1312 (10th Cir. 2010) (holding RLUIPA claim requires prisoner to
show “he wishes to engage in (1) a religious exercise (2) motivated by a sincerely
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held belief, which exercise (3) is subject to a substantial burden imposed by the
government”).
Further, “the exercise of religion often involves not only belief and profession
but the performance of (or abstention from) physical acts: assembling with others for
a worship service, participating in sacramental use of bread and wine, proselytizing,
abstaining from certain foods or certain modes of transportation.” Yellowbear v.
Lampert, 741 F.3d 48, 54 (10th Cir. 2014) (internal quotation marks omitted). Under
RLUIPA, a court must protect “any exercise of religion, whether or not compelled
by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A). We
apply the same rule to First Amendment claims. See Kay, 500 F.3d at 1220 (rejecting
rule that prisoner must show religious exercise was “‘necessary’ to the practice of his
religion”).
The district court dismissed Mr. Tennyson’s First Amendment and RLUIPA
claims, stating that he “does not allege facts demonstrating that he is being denied the
right to practice his sincerely held religious beliefs. He only alleges facts
demonstrating that he is being denied choir eligibility. This denial does not deny him
the ability to practice his religion.” R. at 143. The court erred by construing too
narrowly the exercise of religion, as our recent decision in Yellowbear demonstrates.
“When a sincere religious claimant draws a line ruling in or out a particular
religious exercise, it is not for us to say that the line he drew was an unreasonable
one.” Yellowbear, 741 F.3d at 55 (internal quotation marks omitted); see also Kay,
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500 F.3d at 1220 (“Sincerely held is different from central, and courts have rightly
shied away from attempting to gauge how central a sincerely held belief is to the
believer’s religion.” (internal quotation marks omitted)). Mr. Tennyson pled a
substantial burden on his religious exercise based on his suspension from the choir,
which he alleged was a religious activity motivated by his sincerely held religious
beliefs. Thus, the district court erred in deciding it was frivolous for Mr. Tennyson
to allege that when defendants suspended him from the Praise Team, they denied him
the right to exercise his sincerely held religious beliefs under the First Amendment
and RLUIPA.
2. Retaliation for Constitutionally Protected Activity
Mr. Tennyson alleged that Officer Carpenter and the Superiors retaliated
against him for exercising his First Amendment right to file a grievance by causing
him to be suspended from the Praise Team under the pretext that he had committed
misconduct related to his choir music binders. He claimed that, had he not filed his
grievances seeking the return of his missing photograph, he would not have been
suspended from the Praise Team. According to his chronology of events, he first
filed a grievance attempting to retrieve the family photograph that went missing
when Officer Sparks confiscated his choir music binders. In denying his step-two
grievance, Officer Carpenter accused him of misuse of the binders, a claim
Mr. Tennyson alleged was unfounded. Days later, the chaplain suspended
Mr. Tennyson from the Praise Team at the direction of Officer Carpenter and the
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Superiors. Other choir members who had engaged in the same conduct were not
disciplined.
“It is well-settled that prison officials may not retaliate against or harass an
inmate because of the inmate’s exercise of his right of access to the courts.” Gee v.
Pacheco, 627 F.3d 1178, 1189 (10th Cir. 2010) (internal quotation marks and
brackets omitted). Filing a prison grievance qualifies as “constitutionally protected
activity” under the First Amendment. Id. The district court stated that Mr. Tennyson
“fails to allege specific facts tending to show that the alleged acts of retaliation were
substantially motivated by his protected activity.” R. at 142. We disagree.
Mr. Tennyson alleged retaliation for his constitutionally protected activity—
the filing of grievances. The retaliation was suspension of his ability to exercise his
sincerely held religious beliefs, which “would chill a person of ordinary firmness
from continuing to engage in [the constitutionally protected] activity.” Gee, 627 F.3d
at 1189 (internal quotation marks omitted). Mr. Tennyson alleged that his suspension
from choir eligibility was “substantially motivated as a response to his exercise of
constitutionally protected conduct.” Id. (internal quotation marks and brackets
omitted); see also Milligan, 659 F.3d at 1296 (reversing § 1915(e) dismissal where
prisoner alleged he lost his prison job because he had filed a grievance). Based on
our decision in Gee and Mr. Tennyson’s allegations, we conclude the district court
erred in dismissing Mr. Tennyson’s retaliation claim as legally frivolous.
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3. Equal Protection
Mr. Tennyson attempted to bring an equal protection claim under the
Fourteenth Amendment against Officer Carpenter and the Superiors. He claimed
that, although all of the choir members had used their music binders in the same way,
he was the only Praise Team member disciplined for misuse of his binders.
“Equal protection is essentially a direction that all persons similarly situated
should be treated alike.” Trujillo v. Williams, 465 F.3d 1210, 1228 (10th Cir. 2006)
(internal quotation marks and emphasis omitted). “[T]o assert a viable equal
protection claim, plaintiffs must first make a threshold showing that they were treated
differently from others who were similarly situated to them.” Brown v. Montoya,
662 F.3d 1152, 1172-73 (10th Cir. 2011) (internal quotation marks omitted).
“[D]ifferent types of equal protection claims call for different forms of review.” Id.
at 1172. “Strict judicial scrutiny is appropriate only when the classification involves
a suspect class or interferes with a fundamental right.” Riddle v. Mondragon, 83 F.3d
1197, 1207 (10th Cir. 1996). When strict scrutiny applies, defendants bear the
burden of showing their actions were “narrowly tailored to achieve a compelling
government interest.” KT & G Corp. v. Att’y Gen., 535 F.3d 1114, 1137 (10th Cir.
2008). In contrast, under rational basis review, a prisoner must “overcome a
presumption of government rationality” by pleading facts indicating that “the
distinction between himself and other inmates was not reasonably related to some
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legitimate penological purpose.” Trujillo, 465 F.3d at 1228 (internal quotation marks
omitted).
The district court initially held “Mr. Tennyson’s allegations do not implicate
either a fundamental right or a protected class.” R. at 146. Then, applying a rational
basis test, it concluded he failed to allege he was treated differently from similarly
situated inmates because “[i]t is not plausible that there are no relevant differences
between Mr. Tennyson and other inmates that might reasonably account for their
different treatment.” Id. at 147 (internal quotation marks and brackets omitted).
The district court relied on Templeman v. Gunter, 16 F.3d 367, 371 (10th Cir. 1994),
in which we affirmed dismissal of a prisoner’s equal protection claim alleging he was
treated differently from other inmates with similar records when he was transferred to
administrative segregation.
The district court erred in holding that Mr. Tennyson failed to plead facts
supporting strict scrutiny review. He alleged that he was singled out for discipline
because he had exercised his First Amendment right to use the prison’s grievance
process, a fundamental right, see Smith v. Maschner, 899 F.2d 940, 947 (10th Cir.
1990). He further alleged he was the only African American in the choir and the only
member disciplined for conduct common to all choir members, thereby alleging a
suspect classification based on race. 2 Templeman is distinguishable because the
2
Mr. Tennyson alleged, “Whether the decision was based on [him] . . . using
the grievance procedure, or because he was the only African-American on the Team,
(continued)
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inmate in that case did not allege different treatment interfering with a fundamental
right or based on a suspect classification. See id. Given Mr. Tennyson’s allegations,
it was not necessary for him to allege further that his different treatment was not
reasonably related to a legitimate penological purpose. 3 The district court erred in
dismissing Mr. Tennyson’s equal protection claim as legally frivolous.
* * * *
Up to this point, we have determined that Mr. Tennyson’s First Amendment,
RLUIPA, retaliation, and equal protection claims are non-frivolous. 4
the fact that he was the only member from the Team to be disciplined for a conduct
common to them all, constitutes discrimination in violation of the Equal Protection
Clause . . . .” R. at 92.
3
Even if Mr. Tennyson had not alleged a suspect class or interference with a
fundamental right, dismissal of his equal protection claim with prejudice was not
appropriate because amendment of his complaint would not necessarily be futile. He
may be able to plead facts sufficient to show that his classification “lacked a
reasonable basis or a reasonable relation to a legitimate penological interest.”
Milligan, 659 F.3d at 1296.
4
The district court therefore erred by dismissing all of Mr. Tennyson’s claims
against Officer Carpenter on the ground that they related solely to
Officer Carpenter’s denial of Mr. Tennyson’s grievances. See Gallagher v. Shelton,
587 F.3d 1063, 1069 (10th Cir. 2009) (holding that “denial of a grievance, by itself
without any connection to the violation of constitutional rights alleged by plaintiff,
does not establish personal participation under § 1983”). But as our previous
discussion shows, Mr. Tennyson’s allegations involving Officer Carpenter cannot be
so narrowly construed.
The district court also erred in dismissing all of Mr. Tennyson’s claims against
the unidentified Superiors on the ground he did not provide sufficient information to
allow for service of process on each defendant. Mr. Tennyson argues he did not
know these defendants’ identities at the time he filed his amended complaint. He
says that, with discovery, he will be able to determine the names of the individuals
(continued)
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B. Legally Frivolous Claims
The district court dismissed as legally frivolous Mr. Tennyson’s claims of
cruel and unusual punishment in violation of the Eighth Amendment and his claim
that he was deprived of his property without due process in violation of the
Fourteenth Amendment. We affirm the district court’s dismissal of these claims. 5
1. Cruel and Unusual Punishment
Mr. Tennyson attempted to allege several Eighth Amendment violations. He
first claimed that Officer Carpenter and the Superiors suspended him from religious
activities “for no legitimate reason and without any process demonstrat[ing] malice,
ill will, a desire to injure, or reckless indifference to [his] rights.” R. at 91. He
asserted that “[s]uch a wanton and malicious action constitutes a per se
disproportionate punishment” and violates his “rights to be free from Cruel and
Unusual Punishment.” Id. Mr. Tennyson also claimed that Officer Sparks
who allegedly violated his constitutional rights. The district court erred in dismissing
these claims as frivolous without first affording Mr. Tennyson a reasonable
opportunity to take discovery and amend his complaint to name the particular
individuals. See Martinez v. Winner, 771 F.2d 424, 442 (10th Cir. 1985), vacated on
other grounds by Tyus v. Martinez, 475 U.S. 1138 (1986).
5
We also affirm the district court’s dismissal as legally frivolous
Mr. Tennyson’s claims under 42 U.S.C. §§ 1985 and 1986, his claim that Officer
Sparks violated the Fourth Amendment’s prohibition against unreasonable seizures,
and his claims against KCCC. In his appeal brief, Mr. Tennyson does not point to
any error in the court’s dismissal of these claims. He has therefore forfeited
appellate review of these issues. See Bronson v. Swensen, 500 F.3d 1099, 1104
(10th Cir. 2007) (“[T]he omission of an issue in an opening brief generally forfeits
appellate consideration of that issue.”).
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intentionally and maliciously removed family photos from his cell, violating his
Eighth Amendment rights. And he claimed that, by failing to discipline Officer
Sparks, Warden Everett also subjected him to cruel and unusual punishment. We
agree with the district court that Mr. Tennyson’s Eighth Amendment claims are
indisputably and legally meritless.
“Prison officials are required to insure that inmates receive adequate food,
clothing, shelter and medical care.” Shannon v. Graves, 257 F.3d 1164, 1168
(10th Cir. 2001). To state an Eighth Amendment claim, an inmate must allege prison
conditions that are, objectively, “sufficiently serious so as to deprive inmates of the
minimal civilized measure of life’s necessities” or conditions that “constitute a
substantial risk of serious harm.” Id. (internal quotation marks omitted). In
Shannon, for example, we held that a prisoner’s allegations of exposure to
fecal-contaminated blankets and clothing raised a material issue of fact regarding the
objective component of an Eighth Amendment claim. See id. at 1169. The inmate
must also allege “that a defendant prison official [has] a culpable state of mind, that
he or she acts or fails to act with deliberate indifference to inmate health and safety.”
Id. at 1168.
Mr. Tennyson’s alleged deprivations fall far short of what our cases require for
an Eighth Amendment claim. In Gee we dismissed a prisoner’s Eighth Amendment
claim based on the confiscation of his canteen items, a deprivation of hygiene items
for approximately 25 hours, and his incarceration in an isolation cell for four weeks
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as failing to state a plausible claim of a constitutional violation. 627 F.3d at 1192;
see also Trujillo, 465 F.3d at 1225 n.17 (10th Cir. 2006) (holding prisoner’s
allegations of limited access to employment, education, housing assignment,
religious programming, recreation time and equipment, telephone and commissary
“[did] not demonstrate a deprivation of the minimal measure of life’s necessities as
required to state [an Eighth Amendment] claim” (internal quotation marks omitted));
Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993) (holding Eighth Amendment
claim based on denial of right to eat a Kosher meal in a particular location was
legally frivolous).
Infringement of a prisoner’s right to practice his religion may violate the Free
Exercise Clause but does not alone necessarily equate to cruel and unusual
punishment. See LaFevers v. Saffle, 936 F.2d 1117, 1119-20 (10th Cir. 1991)
(reversing frivolousness dismissal of First Amendment religious-exercise claim based
on denial of a vegetarian diet, but affirming frivolousness dismissal of Eighth
Amendment claim based on same deprivation). We affirm the district court’s
dismissal of Mr. Tennyson’s Eighth Amendment claims.
2. Deprivation of Property Without Due Process
Mr. Tennyson alleged that Officer Sparks intentionally and maliciously
removed his family photos from his cell during the shakedown, depriving him of his
property without procedural due process in violation of the Fourteenth Amendment.
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The district court dismissed this claim as legally frivolous because Mr. Tennyson has
an adequate post-deprivation remedy. We agree.
An inmate’s “Fourteenth Amendment due process guarantees pertaining to
property are satisfied when an adequate, state postdeprivation remedy exists for
deprivations occasioned by state employees.” Smith v. Colo. Dep’t of Corrs., 23 F.3d
339, 340 (10th Cir. 1994). The Supreme Court applied this rule to intentional acts by
state employees in Hudson v. Palmer, 468 U.S. 517 (1984), in which an inmate
alleged that, during a shakedown, an officer intentionally destroyed the inmate’s
noncontraband personal property. Id. at 529. The Court rejected the inmate’s
contention that his due process rights were violated, noting the availability of a
post-deprivation remedy and stating that “[t]he controlling inquiry is solely whether
the state is in a position to provide for predeprivation process.” Id. at 534. It
reasoned that, “when deprivations of property are effected through random and
unauthorized conduct of a state employee, predeprivation procedures are simply
‘impracticable’ since the state cannot know when such deprivations will occur.” Id.
at 533. Thus, an adequate post-deprivation remedy satisfies due process when the
claim involves “random, unauthorized acts by state employees.” Smith, 23 F.3d at
341. But post-deprivation remedies are insufficient to satisfy due process when the
claim involves “a property deprivation authorized by an established state procedure,
[which] normally requir[es] a predeprivation hearing.” Id.
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Mr. Tennyson does not contend that his post-deprivation remedies are
inadequate. Nor does he claim that Officer Sparks’ conduct was authorized or that he
was acting pursuant to an established state procedure. He argues instead that he was
entitled to a pre-deprivation hearing because Officer Sparks’ deprivation of his
property was foreseeable and preventable, and therefore not “random.” In his
amended complaint, Mr. Tennyson asserted that KCCC was aware that Officer
Sparks had repeatedly engaged in similar conduct. But in support of this contention,
he alleged only one other instance in which Officer Sparks confiscated another
inmate’s photograph. These allegations do not establish the practicality of affording
Mr. Tennyson a pre-deprivation hearing before Officer Sparks allegedly removed
Mr. Tennyson’s photographs. We affirm the district court’s dismissal of this claim as
legally frivolous.
C. Issues Not Addressed by the District Court
We agree with Mr. Tennyson that the district court failed to address certain
allegations in his amended complaint. First, the court did not consider his claim that
Officer Carpenter and the Superiors denied him procedural due process in connection
with his suspension from the prison choir. Also, in dismissing all claims against
Warden Everett and Executive Director Werholtz, the court failed to address all of
Mr. Tennyson’s allegations against them, including his claims that the constitutional
violations were caused by their failure to supervise, train, and discipline
subordinates, and by customs, practices, and policies established by a supervisor and
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followed by his subordinates. “Where an issue has been raised, but not ruled on,
proper judicial administration generally favors remand for the district court to
examine the issue initially.” Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221,
1238 (10th Cir. 2005). As part of our remand, we direct the district court to consider
these allegations. 6
D. Denial of Motions for Appointment of Counsel
Mr. Tennyson filed two motions asking the district court to appoint counsel to
represent him. The district court denied both motions as premature. Soon after
denying his second motion, the district court dismissed Mr. Tennyson’s amended
complaint as legally frivolous. He contends that the district court erred in denying
his motions to appoint counsel.
Mr. Tennyson, “as a civil litigant, has no Sixth Amendment right to counsel,”
but “a court has discretion to request an attorney to represent a litigant who is
proceeding in forma pauperis.” Johnson v. Johnson, 466 F.3d 1213, 1217 (10th Cir.
2006). The district court did not abuse its discretion in denying Mr. Tennyson’s
motions as premature. It had not yet screened his amended complaint pursuant to
§ 1915(e)(2). On remand, Mr. Tennyson may file a new motion for appointment of
counsel or request the court to reconsider its denial of his earlier motions.
See Johnson, 466 F.3d at 1217. We deny as moot Mr. Tennyson’s motion for
appointment of counsel in this appeal.
6
We take no position on the merit of these claims.
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IV. CONCLUSION
In summary, we affirm the district court’s dismissal of Mr. Tennyson’s Eighth
Amendment claims against all defendants and his procedural due process claim
against Officer Sparks as legally frivolous. We also affirm, because Mr. Tennyson
does not contest these claims on appeal, the court’s dismissal of Mr. Tennyson’s
claims under 42 U.S.C. §§ 1985 and 1986, his claim that Officer Sparks violated the
Fourth Amendment’s prohibition against unreasonable seizures, and his claims
against KCCC. We reverse the district court’s dismissal of Mr. Tennyson’s First
Amendment, RLUIPA, retaliation, and equal protection claims against Officer
Carpenter and the Superiors. We also reverse the district court’s dismissal of all
claims against Warden Everett and Executive Director Werholtz because it failed to
consider them, and direct the court to do so on remand. Finally, we direct the court
to consider Mr. Tennyson’s procedural due process claim against Officer Carpenter
and the Superiors.
The judgment of the district court is affirmed in part, reversed in part, and
remanded for further proceedings consistent with this order and judgment. We grant
Mr. Tennyson’s motion to proceed on appeal without prepayment of fees and costs
and remind him that he is obligated to continue making partial payments until the
entire fee and cost amounts are paid in full.
ENTERED FOR THE COURT
Scott M. Matheson, Jr.
Circuit Judge
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