Sawyer v. Burke , 504 F. App'x 671 ( 2012 )


Menu:
  •                                                                          FILED
    United States Court of Appeals
    Tenth Circuit
    November 30, 2012
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    TENTH CIRCUIT                       Clerk of Court
    MYOUN L. SAWYER,
    Plaintiff-Appellant,                       No. 12-3228
    v.                                              (D. of Kan.)
    CHRISTOPHER BURKE,                             (D.C. No. 5:12-CV-03012-SAC)
    Superintendent, Larned State Hospital,
    AUSTIN DESLAURIERS, S.P.T.P.
    Clinical Director, THOMAS KINLEN,
    Supervising Psychologist, NICOLE
    TICE, Psychologist II,
    Defendants-Appellees.
    ORDER AND JUDGMENT *
    Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **
    Myoun Sawyer, a sex offender civilly committed to the Larned State
    Hospital in Kansas, appeals the district court’s dismissal of his civil rights action.
    Sawyer sought redress for the hospital’s seizure of a clock radio and stereo that
    *
    This order and judgment is not binding precedent except under the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.
    **
    After examining the briefs and the appellate record, this three-judge
    panel has determined unanimously that oral argument would not be of material
    assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
    Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
    had been shipped to him at the hospital. He claims the seizure violated a number
    of his constitutional rights. The district court granted Sawyer leave to proceed in
    forma pauperis and then sua sponte dismissed the action pursuant to 
    28 U.S.C. § 1915
    (e)(2)(B)(ii), concluding that the complaint failed to state a claim upon
    which relief could be granted. Sawyer now challenges this ruling on appeal.
    Exercising jurisdiction under 
    28 U.S.C. § 1291
    , we affirm the district court.
    I. Background
    The facts underlying Sawyer’s original complaint concern an order of
    hygiene products, food, and electronic equipment shipped to Sawyer’s address at
    the Larned State Hospital. At the time the shipment was received, Sawyer was
    classified as having Security Level Zero, a security level that accords patients
    fewer privileges at Larned. Pursuant to hospital policy, because Sawyer was at
    this more restrictive security level, he did not receive the following items: a
    television, a DVD player, an MP3 stereo, an alarm clock, and a black video cable.
    These items were returned to the company that had shipped them in the first
    place.
    Sawyer contests the hospital’s decision to deny him two items from the
    shipment: the alarm-clock radio and the stereo. Sawyer cites to a portion of the
    resident handbook for Larned that permits a resident at Security Level Zero to
    possess a radio, CD player, or tape player.
    -2-
    Relying on the handbook, Sawyer alleges the return of these two items
    violated hospital policy and therefore his constitutional rights. Specifically,
    Sawyer alleges these decisions by the hospital violated his right to procedural due
    process under the Fifth and Fourteenth Amendments. He also alleges the
    decisions were motivated by racial animus and therefore violate his right to equal
    protection under the Fourteenth Amendment.
    We address the basis for dismissing each of these claims in turn.
    II. Analysis
    In a case proceeding in forma pauperis, § 1915(e)(2)(B)(ii) provides that
    “the court shall dismiss the case at any time if the court determines that . . . the
    action or appeal . . . fails to state a claim upon which relief can be granted.” This
    language parallels that of Federal Rule of Civil Procedure 12(b)(6). We have
    traditionally applied a de novo standard of review to dismissals made under Rule
    12(b)(6). And we apply the same standard in the context of a dismissal under §
    1915(e)(2)(B)(ii). See Perkins v. Kansas Dep’t of Corr., 
    165 F.3d 803
    , 806 (10th
    Cir. 1999).
    Dismissal of a pro se complaint for failure to state a claim is proper only
    where it is obvious that the plaintiff cannot prevail on the facts he has alleged,
    and it would be futile to give him an opportunity to amend. See Whitney v. New
    Mexico, 
    113 F.3d 1170
    , 1173 (10th Cir. 1997). In determining whether dismissal
    is proper, we must accept the allegations of the complaint as true and we must
    -3-
    construe those allegations, and any reasonable inferences that might be drawn
    from them, in the light most favorable to the plaintiff. See Gee v. Pacheco, 
    627 F.3d 1178
    , 1183 (10th Cir. 2010). At the same time, to survive a motion to
    dismiss “the plaintiff must provide more than labels and conclusions or a
    formulaic recitation of the elements of a cause of action, and factual allegations
    must be enough to raise a right to relief above the speculative level.” 
    Id.
     (quoting
    Bell Atl. Corp. v. Twombly, 
    550 U.S. 544
    , 555 (2007)) (alterations and internal
    quotations omitted). Finally, as is the case here, we must liberally construe the
    allegations in a pro se complaint. See Haines v. Kerner, 
    404 U.S. 519
    , 520
    (1972).
    All of the allegations from Sawyer’s complaint fail because they do not
    state claims upon which relief can be granted. As an initial matter, we note that
    Sawyer appears to have misinterpreted the scope of the Fifth Amendment. He has
    only alleged constitutional violations committed by agents of the State of Kansas,
    not the federal government. Therefore, the Due Process Clause of the Fifth
    Amendment is not implicated. At the same time, his Fifth Amendment procedural
    due process claim alleges the same facts and violations as his Fourteenth
    Amendment due process claim, and we therefore construe both claims to be one in
    the same.
    Nonetheless, Sawyer’s procedural due process claim under the Fourteenth
    Amendment also fails. On this claim, “the Due Process Clause is simply not
    -4-
    implicated by a negligent act of an official causing unintended loss of or injury to
    life, liberty, or property.” Daniels v. Williams, 
    474 U.S. 327
    , 328 (1986). Yet
    the record reflects that the return of the clock radio and stereo to the manufacturer
    was at most a negligent oversight by the hospital. Further, contrary to the
    conclusory allegations made by Sawyer, there is no evidence that the return of
    these items was motivated by malice, a claim over which we might have
    jurisdiction.
    Sawyer’s equal protection claim also fails. On this claim, Sawyer “must
    plead and prove that the defendant[s] acted with discriminatory purpose.”
    Ashcroft v. Iqbal, 
    556 U.S. 662
    , 676 (2009) (citing Washington v. Davis, 
    426 U.S. 229
    , 240 (1976)) (other citation omitted). Yet Sawyer has offered nothing more
    than the unsubstantiated assertion that because he is African American, the
    decision to withhold the clock radio and stereo was motivated by racial animus.
    To the contrary, the record reflects that the decision to deny Sawyer these items
    was motivated by a hospital policy on the different items permitted for patients
    with different security levels. Sawyer points to no evidence to support his
    allegation that the policy has been selectively enforced against him. In sum, the
    district court properly dismissed the equal protection claim.
    -5-
    III. Conclusion
    Based on the foregoing analysis, we affirm the district court.
    ENTERED FOR THE COURT
    Timothy M. Tymkovich
    Circuit Judge
    -6-