Buchanan v. State of Oklahoma

FILED
United States Court of Appeals
Tenth Circuit
October 12, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
MARK BUCHANAN,
Plaintiff-Appellant,
v. No. 10-6099
(D.C. No. 5:09-CV-00744-D)
STATE OF OKLAHOMA; (W.D. Okla.)
OKLAHOMA DEPARTMENT OF
EMERGENCY MANAGEMENT;
OKLAHOMA DEPARTMENT OF
CORRECTIONS; JUSTIN JONES;
LEXINGTON ASSESSMENT AND
RECEPTION CENTER; ERIC
FRANKLIN; JIMMY GREEN; MIKE
CARPENTER; CAPTAIN
HAMPTON; TAMMY HILL,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.
*
This Order and Judgment is not binding precedent, except under the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 of Appellate
Procedure 32.1 and 10th Circuit Rule 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 matter. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
Plaintiff-Appellant Mark Buchanan, a state prisoner proceeding pro se,
appeals the district court’s dismissal of his civil rights claims under 42 U.S.C.
§ 1983. 1 Mr. Buchanan also seeks a certificate of appealability (“COA”) to
challenge the district court’s dismissal of his claims, and requests leave to
proceed in forma pauperis (“IFP”) on appeal. For the reasons set forth below, we
AFFIRM the district court’s dismissal of Mr. Buchanan’s § 1983 claims,
DISMISS his application for a COA because it is not properly before us, and
DENY his renewed motion to proceed IFP on appeal.
BACKGROUND
Mr. Buchanan has sued the State of Oklahoma, two state agencies, two
Oklahoma correctional facilities, and individual prison officials and guards in
both their official and individual capacities, alleging that his constitutional rights
were violated when he was deprived of medical treatment, deprived of his
personal property, and denied access to the courts while incarcerated. Mr.
Buchanan’s complaint was referred to a magistrate judge.
In a very thorough report and recommendation, the magistrate judge
recommended that the district court dismiss Mr. Buchanan’s § 1983 claims sua
sponte for failure to state a claim upon which relief may be granted. The
magistrate judge noted that some of Mr. Buchanan’s claims “sound[ed] in
1
We construe Mr. Buchanan’s pro se filings liberally. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam); Van Deelen v. Johnson, 497 F.3d
1151, 1153 n.1 (10th Cir. 2007).
2
habeas.” R., Vol. 1, at 121 (Report and Recommendation, dated Mar. 4, 2010).
Generally, as the magistrate judge noted, Mr. Buchanan urged the court (without
much discussion) to provide all possible relief under the habeas corpus procedures
to address the alleged wrongfulness of his incarceration, and he challenged on
constitutional grounds the outcome of his prison disciplinary proceeding. The
magistrate judge concluded that “[h]abeas claims are not cognizable in a civil
rights action,” in that they “challenge[] the fact or duration of . . . confinement.”
Id. (quoting Wilkinson v. Dotson, 544 U.S. 74, 79 (2005)) (internal quotation
marks omitted). The magistrate judge “therefore recommended that all habeas
claims be dismissed without prejudice to Plaintiff[] asserting them in proper
habeas actions.” Id. at 121–22. The magistrate judge noted that the court “t[ook]
no position on the merits or timeliness of any habeas action.” Id. at 122 n.13.
Finally, the magistrate judge recommended that Mr. Buchanan be assessed a
strike, pursuant to 28 U.S.C. § 1915(g), in connection with his filing of the instant
§ 1983 action.
The district court agreed fully with the magistrate judge’s conclusions,
including the magistrate judge’s recommendations concerning the disposition of
Mr. Buchanan’s § 1983 claims and his claims sounding in habeas. More
specifically, the district court adopted the Report and Recommendation and
dismissed Mr. Buchanan’s § 1983 claims with prejudice. Subsequently, the
district court issued an order denying Mr. Buchanan’s motion for leave to proceed
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IFP on appeal, having concluded that he had not demonstrated that his appeal was
in good faith. This appeal followed.
DISCUSSION
“We review de novo the district court’s decision to dismiss an IFP
complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.” Kay v.
Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). “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.” Id. (quoting Curley v. Perry, 246 F.3d 1278, 1281 (10th
Cir. 2001)) (internal quotation marks omitted).
To state a claim for relief under 42 U.S.C. § 1983, “a plaintiff must allege
the violation of a right secured by the Constitution and laws of the United States,
and must show that the alleged deprivation was committed by a person acting
under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988) (emphasis
added). States, state agencies, and state officials acting in their official capacities
are not “persons” acting under color of state law; thus, Eleventh Amendment
sovereign immunity bars claims against these defendants unless the state has
waived that immunity, and Oklahoma has not waived its sovereign immunity as to
§ 1983 claims. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65–66 (1989);
Ramirez v. Okla. Dep’t of Mental Health, 41 F.3d 584, 588–89 (10th Cir. 1994),
4
abrogated on other grounds by Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186(10th Cir. 1998). Similarly, state-operated detention facilities do not have a
separate legal identity from the state, and therefore are not “persons” who have
the capacity to be sued under § 1983. See Aston v. Cunningham, No. 99-4156,
2000 U.S. App. LEXIS 14379, at *12 n.3 (10th Cir. June 21, 2000). The district
court was therefore correct to dismiss Mr. Buchanan’s claims against the state
governmental-entity defendants and the state officials in their official capacities.
The district court also was correct to dismiss Mr. Buchanan’s claims
against defendants Jones, Franklin, Province, Green, Blair, Carpenter, Honaker,
Hill, the “Doe Security Major at DCCC,” members of the “Lexington Correctional
Security Staff,” and members of the “Dick Conners Correctional Security Staff”
in their individual capacities, as Mr. Buchanan failed to allege facts to show that
these defendants personally participated in the alleged constitutional violations.
See Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1214 (10th Cir. 2003),
abrogated on other grounds by Jones v. Bock, 549 U.S. 199 (2007).
Mr. Buchanan’s remaining claims against individual defendants fail to
allege constitutional violations that would warrant relief under § 1983. Mr.
Buchanan, who is diabetic, alleges that he was not allowed to eat immediately
after receiving his insulin shots, did not receive his medication on several
occasions, and was deprived of a back brace. He also alleges that he was
confined to an unsanitary cell, that his property was lost when prison officials
5
negligently failed to secure that property or intentionally confiscated it, and that
he was denied adequate access to the prison library.
We conclude, however, that Mr. Buchanan’s personal hygiene claims are
not sufficiently serious to rise to the level of Eighth Amendment violations. See
Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008) (“[T]he alleged injury or
deprivation must be sufficiently serious. The official’s act or omission must result
in the denial of ‘the minimal civilized measure of life’s necessities.’” (quoting
Farmer v. Brennan, 511 U.S. 825, 832 (1994))).
Furthermore, none of Mr. Buchanan’s allegations regarding loss or
confiscation of his personal property are sufficient to state a claim for a due
process violation. Insofar as the prison officials merely acted with simple
negligence, that would not be enough to raise due process concerns. See Daniels
v. Williams, 474 U.S. 327, 330–31 (1986) (overruling prior precedent “to the
extent that it states that mere lack of due care by a state official may ‘deprive’ an
individual of life, liberty, or property under the Fourteenth Amendment”); see
also Archuleta v. McShan, 897 F.2d 495, 497 (10th Cir. 1990) (discussing
Daniels). Even if Mr. Buchanan’s property-related claims did raise due process
concerns, unauthorized deprivations of a prisoner’s property do not violate due
process where state post-deprivation remedies are available, and Oklahoma law
provides such remedies. Hudson v. Palmer, 468 U.S. 517, 533 (1984); see Okla.
Stat. tit. 12, §§ 1571–71.1 (replevin); Okla Stat. tit. 51, §§ 151-171
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(Governmental Tort Claims Act).
With regard to his medical-needs claims, Mr. Buchanan has not
demonstrated that he suffered substantial harm or that individual defendants acted
with a culpable state of mind as required under the Eighth Amendment. See
Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006) (noting that “a
prisoner must have suffered ‘acts or omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs’” (quoting Estelle v. Gamble, 429
U.S. 97, 106 (1976))). He also has failed to explain how the prison library rules
deprived him of access to the courts. See Trujillo v. Williams, 465 F.3d 1210,
1226 (10th Cir. 2006) (holding that to state a claim for denial of a right of access
to the courts, a defendant “‘must show that any denial or delay of access to the
court prejudiced him in pursuing litigation’” (quoting Treff v. Galetka, 74 F.3d
191, 194 (10th Cir. 1996))). In sum, the district court’s dismissal of Mr.
Buchanan’s § 1983 claims was entirely appropriate.
We also dismiss Mr. Buchanan’s misguided application for a COA, without
undertaking the traditional COA analysis defined by the Supreme Court in Miller-
El v. Cockrell, 537 U.S. 322, 327 (2003), and Slack v. McDaniel, 529 U.S. 473,
478 (2000). Although his application is far from pellucid, Mr. Buchanan appears
primarily to request a COA to appeal from the district court’s determinations
concerning the property and medical-needs claims that he pursued under § 1983.
As to these claims, the COA procedure is patently inapposite. It is beyond
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peradventure that a COA is not necessary to appeal from a district court’s
resolution of § 1983 claims. See 28 U.S.C. § 2253(c)(1)(A) (noting that a COA is
required to appeal from “the final order in a habeas corpus proceeding in which
the detention complained of arises out of process issued by a State court”
(emphasis added)); Miller-El, 537 U.S. at 335–36 (“Before an appeal may be
entertained, a prisoner who was denied habeas relief in the district court must
first seek and obtain a COA from a circuit justice or judge.” (emphasis added));
see also 2 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and
Procedure § 35.4a, at 1753 (5th ed. 2005) (discussing the COA requirement and
noting that “[i]n contrast to the unrestricted availability of appeals in most other
civil litigation, there is no appeal as of right for prisoners in habeas and section
2255 cases”); cf. Harbison v. Bell, __ U.S. __, 129 S. Ct. 1481, 1485 (2009)
(“This provision [§ 2253(c)(1)(A)] governs final orders that dispose of the merits
of a habeas corpus proceeding—a proceeding challenging the lawfulness of the
petitioner’s detention. An order that merely denies a motion to enlarge the
authority of appointed counsel (or that denies a motion for appointment of
counsel) is not such an order and is therefore not subject to the COA
requirement.” (emphasis added) (citations omitted)). Indeed, we have entertained
Mr. Buchanan’s appeal from the district court’s resolution of his § 1983 claims.
Contrary to Mr. Buchanan’s apparent desire, however, we determined on careful
review of the record that the district court did not err.
8
Insofar as Mr. Buchanan’s COA application may be liberally read to
address the claims that the district court identified as sounding in habeas, Mr.
Buchanan’s request for a COA is similarly ill-conceived. The district court did
not purport to address either the procedural viability or the substance of Mr.
Buchanan’s habeas claims. Rather, the court elected to dismiss them “without
prejudice to their assertion in a properly filed habeas action, assuming Plaintiff
can satisfy the applicable statute of limitations for filing a habeas claim.” R.,
Vol. 1, at 143 (Dist. Ct. Order, dated Apr. 8, 2010). In other words, the district
court did not adjudicate on either procedural or substantive grounds Mr.
Buchanan’s habeas claims. 2 Cf. Boutwell v. Keating, 399 F.3d 1203, 1210–11
(10th Cir. 2005) (upholding district court’s decision to construe prisoner’s § 1983
complaint as a habeas petition “[a]fter determining that [the prisoner’s] claims
were not cognizable under § 1983” and to dismiss those habeas claims on the
merits “because the facts alleged in the petition even if true fail to establish a
2
In Rael v. Williams, 223 F.3d 1153 (10th Cir. 2000), we responded in
an analogous fashion to a somewhat obverse situation—viz., a situation in which
the thrust of the action sounded in habeas under 28 U.S.C. § 2241, but the action
also included claims not sounding in habeas. Id. at 1154–55. We (1) endorsed
the district court’s decision to resolve the habeas claim at the heart of the action;
(2) granted a COA as to that habeas claim; and (3) held that “all other claims [not
sounding in habeas] contained in the petition are dismissed without prejudice.”
Id. (emphasis added). Here, of course, the thrust of the action sounded in § 1983
(not habeas), and the district court addressed those § 1983 claims on the merits,
and dismissed all other claims not sounding in § 1983 (i.e., sounding in habeas)
without adjudicating them and without prejudice.
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constitutional violation”). Consequently, the court’s action did not result in a
habeas ruling, which Mr. Buchanan could only appeal by first obtaining a COA.
If Mr. Buchanan brings a habeas action in the future and the district court does
not afford him satisfactory relief, then he may apply for a COA to appeal from the
district court’s habeas ruling. But, at the present time, Mr. Buchanan’s
application for a COA is not predicated upon a district court habeas ruling and,
accordingly, it is premature. Thus, for the foregoing reasons, we dismiss Mr.
Buchanan’s application for a COA.
Finally, we deny Mr. Buchanan’s renewed motion to proceed IFP on
appeal, as he has failed to present a “reasoned, nonfrivolous argument on the law
and facts in support of the issues raised on appeal.” Caravalho v. Pugh, 177 F.3d
1177, 1177 (10th Cir. 1999).
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s order
dismissing Mr. Buchanan’s § 1983 claims, DISMISS Mr. Buchanan’s application
for a COA, and DENY his renewed motion for leave to proceed IFP on appeal.
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We direct Mr. Buchanan to remit the full amount of the appellate filing fee. 3
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
3
We also deny Mr. Buchanan’s recently filed “Motion to File a
Supplemental Brief.”
11