*

 This order and judgment is not binding precedent except under the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.

FILED

United States Court of Appeals

Tenth Circuit

June 20, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MYOUN L. SAWYER,

Plaintiff-Appellant, No. 08-3083

v. (D. of Kan.)

LEROY GREEN, JR., Sheriff,

Wyandotte County Sheriff’s

Department; RANDALL

HENDERSON, Jail Administrator,

Wyandotte County Jail; PENNY

SAUNDERS, Commissionary

Supervisor, Wyandotte County Jail;

JEFFREY MERKIEL, Sergeant/

Supervisor, Wyandotte County

Sheriff’s Department,

Defendants-Appellees.

(D.C. No. 08-CV-3017-SAC)

ORDER AND JUDGMENT*

Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.** 
1

 Because Sawyer is proceeding pro se, we review his filings liberally. See

Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d 1106,

1110 (10th Cir. 1991).

-2-

Myoun L. Sawyer appeals the district court’s sua sponte dismissal of his

pro se complaint.1

 In the complaint, Sawyer alleged Defendants—jail officials

and the sheriff’s office in Wyandotte County, Kansas—violated several of his

constitutional rights during Sawyer’s confinement in a county jail. Because

Sawyer proceeded in forma pauperis (IFP) and was subject to 28 U.S.C.

§ 1915(e)(2)(B)(ii) requirements, the district court sua sponte dismissed the

complaint for failure to state a claim.

We agree with the district court’s reasoning and therefore DISMISS this

appeal.

I. Background

Sawyer’s 42 U.S.C. § 1983 complaint alleges violations of several of his

constitutional rights, all stemming from the following incidents.

In May, June, and July 2007, Sawyer, while incarcerated in a county jail,

noticed allegedly erroneous transactions in his jail financial account. Although

Commissary Supervisor Penny Saunders deducted the cost of three welfare kits,

Sawyer alleges he did not receive any of them. And he alleges Saunders

overcharged him for making copies. All in all, Sawyer claims his account is

$12.55 short.
-3-

In an unrelated July 2007 incident, Sergeant Jeffrey Merkeil pressed a

Taser gun against Sawyer’s back and pressed Sawyer against elevator doors

during transport. Sawyer does not allege Merkeil actually activated the gun; it

was simply pressed against his back. At the time of this incident, Sawyer was in

restraints, hands behind his back.

Sawyer complained about the above incidents, but Jail Administrator

Randal Hendersen and Sheriff Leroy Green, Jr. apparently failed to address the

grievances.

II. Discussion

Sawyer proceeded IFP below and is thus subject to the requirements of 28

U.S.C. § 1915. Under § 1915(e)(2)(B)(ii), district courts must dismiss an IFP

complaint if it “fails to state a claim on which relief may be granted.”

We review de novo the district court’s decision to dismiss an IFP complaint

under § 1915(e)(2)B)(ii). 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. (quotation omitted). 

“In determining whether a dismissal is proper, we must accept the allegations of

the complaint as true and construe those allegations, and any reasonable

inferences that might be drawn from them, in the light most favorable to the

plaintiff.” Id. (quotation omitted).
-4-

We conclude Sawyer failed to state a claim either related to his jail

financial account or his incident with Sgt. Merkeil.

A. Jail Account Funds

Sawyer argues Commissary Supervisor Saunders deprived him of property

rights without due process. It is well settled, however, that “an unauthorized

intentional deprivation of property by a state employee does not constitute a

violation of the procedural requirements of the Due Process Clause of the

Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is

available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984).

Sawyer failed to allege that meaningful postdeprivation remedy was

unavailable. In fact, the record contains a copy of his grievance filed in July

2007, challenging transactions concerning his financial account at the jail. And

even if the grievance was indeed ignored, Sawyer could seek relief in state courts. 

See Kan. Stat. Ann. § 75-52,138 (requiring inmates to exhaust available

administrative remedies before filing a civil action against the State of Kansas). 

Adequate postdeprivation remedy thus existed to redress the alleged intentional

deprivation of Sawyer’s jail funds. His claim therefore fails.

B. Excessive Force

Sawyer also alleges Sgt. Merkeil inflicted cruel and unusual punishment by

pressing a Taser gun against his back and holding him against an elevator wall

during transit. Correctional officers violate inmates’ rights under the Eighth
2

 As the district court pointed out, it is not clear whether, at the time of

that incident, Sawyer was a pretrial detainee or already convicted of a crime. But

our analysis does not change. “Although the Due Process Clause governs a

pretrial detainee’s claim of unconstitutional conditions of confinement, the Eighth

Amendment standard provides the benchmark for such claims.” Craig v. Elberly,

164 F.3d 490, 495 (10th Cir. 1998) (citation omitted).

3

 Nor are we persuaded that the jail and the sheriff’s office authorities’

apparent lack of response to Sawyer’s grievances constitutes a constitutional

violation. Procedurally, nothing more is required than Sawyer’s ability to raise

(continued...)

-5-

Amendment’s Cruel and Unusual Punishment Clause2 when they subject inmates

to an “unnecessary and wanton infliction of pain.” Whitley v. Albers, 475 U.S.

312, 319 (1986) (quotation omitted). To determine whether an officer applied

excessive force, we consider “whether force was applied in a good-faith effort to

maintain or restore discipline, or maliciously and sadistically to cause harm.” 

Hudson v. McMillan, 503 U.S. 1, 7 (1992). “The Eighth Amendment’s

prohibition of cruel and unusual punishments necessarily excludes from

constitutional recognition de minimis uses of physical force, provided that the use

of force is not of a sort repugnant to the conscience of mankind.” Id. at 9–10

(quotations omitted).

Sawyer’s allegations do not go beyond the minimum level of discomfort

described in Hudson. Having a Taser gun pressed against his back and being

pressed against elevator doors during transit does not bespeak malicious and

sadistic application of force. Sawyer’s excessive force claim must therefore be

dismissed.3
3

(...continued)

his constitutional claims in the courts, which he obviously has done here by filing

a § 1983 complaint. See Walters v. Corr. Corp. of Am., 119 F. App’x 190, 191

(10th Cir. 2004) (“When the claim underlying the administrative grievance

involves a constitutional right, the prisoner’s right to petition the government for

redress is the right of access to the courts, which is not compromised by the

prison’s refusal to entertain his grievance.” (quoting Flick v. Alba, 932 F.2d 728,

729 (8th Cir. 1991)). Sawyer’s dissatisfaction with the apparent disregard for

grievances filed in connection with his excessive force claim is, accordingly, of

no moment in this appeal.

-6-

III. Conclusion

For the foregoing reasons, we DISMISS Sawyer’s appeal.

Entered for the Court

Timothy M. Tymkovich

Circuit Judge