Kissick v. James ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 19 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
CHARLES MICHAEL KISSICK,
Plaintiff-Appellant,
No. 97-6165
v. (District of Oklahoma)
(D.C. No. 96-CV-1166)
TOMMY JAMES, R. G. THOMPSON,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, PORFILIO, and MURPHY, Circuit Judges.
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.
Charles M. Kissick, a federal prisoner appearing pro se, appeals the district
court’s grant of summary judgment to defendants L.T. James and R.G. Thompson.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Kissick brought this suit pursuant to Bivens v. Six Unknown Named Agents, 403
U.S. 388 (1971), alleging that his ring and watches were wrongfully confiscated
following a search of a leisure center at the Federal Correctional Institution in El
Reno, Oklahoma. The district court granted summary judgment as to Kissick’s
claims against the defendants in their official capacity because federal officials
are immune from liability in their official capacity under the Eleventh
Amendment. FDIC v. Meyer, 510 U.S. 471, 485 (1994). As to the claims against
the defendants in their individual capacity, the district court granted summary
judgment to the defendants on qualified immunity grounds, reasoning that Kissick
had not identified a clearly identified right or law which the defendants violated. 1
1
In reaching this conclusion, the district court reasoned as follows:
[Kissick’s] constitutional rights claim is based on a deprivation of
property in violation of the due process clause. As the magistrate
judge noted, the record reflects that [Kissick’s] complaint about the
confiscation procedure utilized is essentially a negligence claim,
which is insufficient to trigger the protections of the due process
clause. Daniels v. Williams, 474 U.S. 327, 330 (1986). Even if
[Kissick’s] claim is construed as alleging the defendants intentionally
kept his property, that contention is also insufficient because a
deprivation of a constitutionally protected property interest caused by
an employee’s random unauthorized conduct does not give rise to a
due process claim where there is an adequate post-deprivation
remedy. Hudson v. Palmer, 468 U.S. 517, 533 (1984). In this case,
[Kissick] has an adequate post-deprivation remedy under the FTCA if
it is his contention that defendants acted outside their authority in
confiscating his property.
Dist. Ct. Order at 3.
-2-
This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and affirms.
This court has conducted a de novo review of Kissick’s briefs and
contentions, as well as the entire record on appeal. Upon review, we AFFIRM
for substantially the reasons set forth in the district court’s well-reasoned Order
dated May 6, 1997. We also note that Kissick’s appeal is frivolous or fails to
state a claim under 28 U.S.C. § 1915(e)(2)(B) for purposes of counting “prior
occasions” under 28 U.S.C. § 1915(g).
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
-3-