UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

HENRY LEE GRIFFIN, JR., Plaintiff-Appellant,

v. JOHN W. HICKENLOOPER, as Governor of the State of Colorado, in his official capacity; RICK RAEMISCH, in his official capacity; * TOM CLEMENTS, in his individual capacity; ** JOHN L. DAVIS, in his individual and official capacity, Defendants-Appellees. No. 13-1126 (D.C. No. 1:11-CV-03380-REB-BNB) (D. Colo.)

* Pursuant to Rule 43(c)(2) of the Fede ral Rules of Appellate Procedure, Rick Raemisch is substituted in his official capacity for Roger Werholtz, Interim Executive Director of the Colorado Departme nt of Corrections, who was previously substituted for Tom Clements, Executive Dire ctor of the Colorado Department of Corrections, as a Defendant-App ellee in this action.

** Mr. Clements is deceased. Mr. Griffi n asserted a claim against him in both his official and individual capacities. Our substitution of Mr. Raemisch for Mr. Clements under Fed. R. App. P. 43( c)(2) affects only th e official-capacity allegations. Because we affirm the district court’s dismi ssal of Mr. Griffin’s entire claim against Mr. Clements, however, we need not substitu te an appropriate party for Mr. Clements in hi s individual capacity. See Kincaid v. Rusk , 670 F.2d 737, 741 n.3 (7th Cir. 1982) (stating court of appeal s did not have to determine whether it should have substituted cu rrent sheriff “or any othe r person” for purposes of individual-capacity claim agains t deceased sheriff sued in both official and individual capacities, where dismissal of individual-capacity cl aims against sheriff was appropriate), abrogation on other grounds recognized in Salazar v. City of Chicago , 940 F.2d 233, 240 (7 th Cir. 1991). FILED United States Court of Appeals Tenth Circuit 

### December 12, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - ORDER AND JUDGMENT ***

Before GORSUCH , ANDERSON , and HOLMES , Circuit Judges.
Henry Lee Griffin, Jr., appeals pro se from the dismissal of his prisoner civil rights complaint, brought pursuant to 42 U.S. C. § 1983. The dist rict court dismissed two of his claims on screening. See 28 U.S.C. § 1915(e)(2)(B). It then referred the remaining three claims to a magistrate judge. The district court adopted the magistrate judge’s recomme ndation and dismissed the re maining three claims for failure to state a claim. In addition to the dismissa ls, Mr. Griffin challenges th e district court’s order staying discovery and its award of costs in favor of defendant Hickenlooper. We affirm in part, and dism iss the appeal in part. I. Dismissal For Failure to State a Claim We review de novo the district court’s dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6). See Casanova v. Ulibarri , 595 F.3d 1120, 1124 (10th Cir. 2010). To survive a Rule 12( b)(6) motion, a plaintiff’s well-pleaded

*** After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination 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 doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.- 3 - factual allegations must, when taken as true and viewed in the light most favorable to the plaintiff, state a claim for relief “‘that is plausi ble on its face.’” Id. (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). “Because [Mr. Griffin] is proceeding pro se, we liberally construe his filings.” Id. at 1125. A. Challenge to Colorado ’s “Three Strikes” Provision Mr. Griffin’s first claim presents a cons titutional challenge to Colo. Rev. Stat. § 13-17.5-102.7(1). This state-law provisi on concerns inmates who have on three or more occasions bought a civi l action based upon prison conditions that has been dismissed for one of several enumerated reasons, including frivol ousness. Under the statute, such inmates are prohibited from pr oceeding at public expense in subsequent proceedings. We previously upheld the validity of a similar federal law against challenges like those Mr. Griffin raises. See, e.g. , White v. Colorado , 157 F.3d 1226, 1232-35 (10th Cir. 1998) (addressing c onstitutional challenges to 28 U.S.C. § 1915(g)). He provides us with no go od reason to reach a different result concerning his constitutiona l challenges to the substant ially similar provisions of § 13-17.5-102.7(1). 1 We therefore affirm the dismissal of this claim.

1 Mr. Griffin’s argument that 28 U.S.C. § 1915(b)(4) preempts § 13-17.5-102.7(1) is frivolous. The language he quotes from § 1915(b)(4), considered in context, does not conflict with the three-strikes requirement under either federal or state law.- 4 - B. Challenge to Temporary Denial of Privileges Mr. Griffin’s second clai m attacks the constitutiona lity of another Colorado statute, Colo. Rev. Stat. § 17-20-114.5, an d a concomitant regulation, AR 600-05. These provisions permit the Colorado Depa rtment of Corrections to deny privileges to inmates in state correct ional facilities as a disc iplinary measure. Among the privileges affected by the statute and regul ation are the inmate’s use and enjoyment of personal items such as tele vision, radio, entertainment systems, or snacks. Such items, Mr. Griffin argues, ar e “property” owned by the inmates under Colorado law and therefore cannot be considered a priv ilege that can be ta ken from them as a disciplinary measure. This being the case, he contends, the ch allenged statute and regulation interfere with his st ate-created property and/or liber ty interest in the use of his property without due process of law. The district court, relying on Cosco v. Uphoff , 195 F.3d 1221, 1224 (10th Cir. 1999), concluded that the temporary depr ivation of Mr. Griffin’s property for disciplinary reasons was “not an atypical, significant ha rdship of prison life” and therefore could not give rise to a due proce ss claim. R., Vol. I at 165. We agree. We therefore affirm the dismissal of th is claim. (We address Mr. Griffin’s complaints about permanent deprivation of his property, infra .) C. Challenge to Involuntary S ervitude/Inadequate Compensation In his third claim, Mr. Griffin challenges the constitutionality of Colo. Rev. Stat. § 17-20-115, which require s inmates to work. He contends this- 5 - statute deprives him of the full value of his labor and subject s him to involuntary servitude. He further argues that the statute deprives hi m of due process because he did not receive specific notice that he w ould be required to wo rk as part of his criminal proceedings and becau se the work requirement wa s not expressly made part of his judgment and sentence. Requiring Mr. Griffin to work in prison for prison wages is not unconstitutional. The Thirteenth Ame ndment expressly pe rmits “involuntary servitude” as “punishment for crime wh ereof the party shall have been duly convicted.” U.S. Constituti on, Amend. XIII, § 1. “A prisoner has no basis for asserting a violation of due process simply b ecause he is made or allowed to work for low pay as punishment for a crime of which he was lawfu lly convicted.” Serra v. Lappin , 600 F.3d 1191, 1196 (9th Cir. 2010). As to his due-process argument clai ming a lack of notice, the alleged deprivations of his liberty and property were not accomplished without due process of law; rather, Mr. Griffin wa s convicted of a crime, and th e labor he complains of is one component of his sentence of incarceration. He cites no authority requiring that, as part of his criminal pro ceedings or individual judgment and sentence, an inmate be notified of every incident of prison life, including the obligation to work. In addition, the very statute Mr. Griffin challenges puts inmates on notice that if convicted, they are ob ligated to work. See Colo. Rev. Stat. § 17-20-115. This claim was therefore properly dismissed.- 6 - II. Claims Dismissed on Screening We review a dismissal for frivolousne ss under § 1915(e)(2)(B)(i) for an abuse of discretion. See Conkle v. Potter , 352 F.3d 1333, 1335 n.4 (10th Cir. 2003). To the extent the dismissal for frivol ousness turns on an issue of law, however, we review it de novo. Id. A. Due-Process Claim Involving Seizure and Disposal of Property In his fourth claim, Mr. Griffi n charged that AR 850-06—governing disposition of inmate property— is unconstitutional on its face and as applied to him. The district court rejected th e facial challenge b ecause Mr. Griffin failed to show that the regulation was “unconstitutional in all of its applications.” R., Vol. I at 77. See United States v. Salerno , 481 U.S. 739, 745 (1987 ) (stating standard). Mr. Griffin argues, incorrect ly, that this facial ch allenge standard does not apply to administrative re gulations like AR 850-06. See, e.g., Reno v. Flores , 507 U.S. 292, 300-01 (1993) (holding Salerno test applicable to facial challenge to INS regulation); Scherer v. U.S. Forest Serv. , 653 F.3d 1241, 1243 (10th Cir. 2011) (“To prevail in [a] facial ch allenge to an agency’s regu lation, the plaintiff[] must show that there is ‘no set of circumstan ces’ in which the challenged regulation might be applied consistent with the agency’s st atutory authority.”). Alternatively, he argues that his co mplaint meets the Salerno test, because AR 850-06 conflicts with certain Colorado statutes, making it “statuto rily void [and] unconstitutional in all of its applications.” Aplt. Opening Br. at 6. We disagree. Mr. Griffi n fails to show that- 7 - the Colorado statutes he cites, which provi de the Colorado Depart ment of Corrections with authority to operate a ca nteen for the benefit of inma tes, are in conflict with AR 850-06, which governs in mate personal property. We turn to the “as-applie d” challenge. In his comp laint, Mr. Griffin claimed that Mr. Clements authorized his CDOC employees to deprive me of $603.14 of my personal property by taking it and thro wing it in an authorized CDOC CSP Dumpster without my authorization and I never received just compensation for my personal propert y, therefore 850-06 violated and caused injury to my Fifth and Fourteenth Amendment rights. R., Vol. I at 55. The district court concluded that ther e was no procedural due process violation because Mr. Griffin had adequate post-depr ivation remedies: he could pursue the prison grievance procedure and/or fi le an action in state court. See Hudson v. Palmer , 468 U.S. 517, 533, 536 n.15 (1984) (stating unauthorized destruction of property by state employee requires post- deprivation remedy; such remedy may include prison grievance procedure). But Mr. Griffin does not assert that Mr. Clements committed an ac t unauthorized by state proce dure. Rather, he claims that the deprivation resulted from an established state pro cedure. Post-deprivation remedies alone are insuffici ent where the deprivation of property results from an established state procedure. See Logan v. Zimmerman Brush Co ., 455 U.S. 422, 435-36 (1982).- 8 - Nevertheless, we affirm the dismissal of this claim, becau se Mr. Griffin was provided with both adequate pre-depriv ation and post-deprivation remedies. We have previously held that due pro cess is satisfied when a prison provides a meaningful opportunity for the inmate to send unauthorized property to someone outside the prison as an altern ative to having it destroyed. Searcy v. Simmons , 299 F.3d 1220, 1229 (10th Cir. 2002). Here, the DOC regulations provided Mr. Griffin with notice of the seizure and an opportunity to direct the disposition of his property as an alterna tive to its destruction. AR 850-06 provides that “[u]nauthorized property will be disposed of in accordance with AR 300-06, Searches and Contraband Control .” CDOC Reg. 850-06(IV)(A)(7). Under AR 300-06, prison officials may dispose of property that is determined to be contraband. See CDOC Reg. 300-06(III)(D), 300-06(IV)(S). If an inmate can prove ownership and the item does not pose a security risk, the inmate may mail it from the prison at his or her own expense. CDOC Reg. 300-06(IV)(S)(6)(d). If the inmate lacks available funds to mail the item out within ten days of notice, the item may be destroyed or in some cases donated to charity. Id. According to an affidav it attached to his amende d complaint, Mr. Griffin received the appropriate notice and did mail some of his unauthorized property outside of the prison pursuant to the pris on policy. Other property apparently was destroyed because at the time of dispositio n Mr. Griffin did not have adequate funds in his prison account to cover mailing costs. But Mr. Griffin does not assert that his- 9 - lack of funds denied him a meaningful opportunity to ma il out the property before it was destroyed.
In Searcy , the inmate lost onl y the possession of his property and not its ownership. Searcy , 299 F.3d at 1229. Here, Mr. Grif fin lost all of his property rights once the property was destroyed. But, as th e district court found, if aggrieved by the destruction, Mr. Griffin had a post-depriva tion remedy. He coul d file an action in state court or pursue the inmate grie vance process to obtain redress. Mr. Griffin argues that the state-c ourt remedy was inadequate, because although he filed a state-court suit, it was dismis sed due to his inability to pay the filing fee. We need not consider this argument, however, because he does not challenge the district court’ s alternate finding: that th e prison grievance procedure itself provided an adequate post-deprivation remedy. See Hudson , 468 U.S. at 536 n.15 (indicating prison grieva nce procedure can provide adequate post-deprivation remedy); Al-Ra’id v. Ingle , 69 F.3d 28, 32 (5th Cir. 1995) (same). 2 Given the availability of both ade quate pre-deprivation and post-deprivation remedies, Mr. Griffin suffered no deprivation of his procedural due process rights. 3

2 Mr. Griffin states that he pursued the grievance process, but it was unsuccessful. But a remedy is not inadequa te merely because it is unsuccessful.
3 As worded in his complaint, Mr. Gr iffin’s fourth clai m included occasional references to “just compensation” for his loss. R., Vol. I at 55-56. But in his opening brief in this court, he focuses all of his argumen ts on the alleged denial of procedural due process. We therefore will not consider whether his complaint stated a separate claim for “just compensation.”- 10 - B. Warden’s Failure to P revent Use of False Evidence Finally, in his fifth claim, Mr. Grif fin alleged that Warden John L. Davis unconstitutionally permitted pr ison employees to use false evidence against him at a disciplinary hearing that resulte d in his being sentenced to fifteen days of disciplinary segregation. The district court concluded this claim fa iled because Warden Davis had not personally participated in th e alleged constitutional violation. Mr. Griffin’s complaint re cites that after disciplin ary charges were brought against him, but prior to the hearing on those charges, he sent an offender communication form to Warden Davis request ing that the warden intervene in the pending disciplinary proceeding to prevent a violation of his procedural due process rights through the use of fals e evidence. He co mplains the warden “failed to take reasonable steps to remedy a foreseeable unconstitutional hearing,” resulting in his conviction and sentence to punitive segr egation. R., Vol. I at 57. We affirm, but on a different basis than that cited by the dist rict court. We conclude that Mr. Griffin has failed to a llege a plausible due process claim. He admits that once convicted of the offense, he was permit ted to appeal his conviction to the warden, and he affirmatively states that the warden upheld his conviction on appeal. He thus had an opportunity to pres ent his false evidence claim to the warden, and to have it ruled upon. Given this opport unity, he fails to show that the warden’s- 11 - alleged lack of response to his pre- hearing notice denied him due process. 4 The district court therefore properl y dismissed this claim. III. Stay of Discovery Shortly before defendant Hickenlooper f iled his motion to dismiss, Mr. Griffin served written interrogatories on him. Mr . Hickenlooper then f iled a motion to stay discovery. The magistrate judge granted th e motion. Mr. Griffi n did not appeal to the district court from the ma gistrate judge’s grant of th e stay of discovery. We therefore cannot consider his appeal from the magistrate judge’s order . See, e.g., SEC v. Merrill Scott & Assoc ., 600 F.3d 1262, 1269 (10th Cir. 2010) (noting that litigant’s failure to file objec tions to magistrate judge’s non-dispositive order “strips us of jurisdiction to review the challenged order”). IV. Award of Costs In its final judgment, th e district court awarded defendant Hickenlooper his costs, to be taxed by the clerk of court. Defendants have never f iled a bill of costs; nor has the district court taxed any specific amount of costs against Mr. Griffin. We therefore lack appellate jurisdic tion over the issue of costs. See, e.g., Mekdeci ex rel. Mekdeci v. Merrell Nat’l Labs , 711 F.2d 1510, 1523 (11th Cir. 1983).

4 Mr. Griffin now complains of Warden Davis’s actions in connection with the disposition of his appeal, and of the ward en’s alleged “failure to supervise” his employees. See Aplt. Reply Br. at 5-7. Although he asserts that these allegations were part of his complaint, we disagree . The allegations will therefore not be considered in evaluating whethe r he has stated a claim.- 12 - CONCLUSION The judgment of the district court is affirmed. We dismiss Mr. Griffin’s appeal from the order staying discovery a nd from the award of costs for lack of jurisdiction. Mr. Griffin’s request to pro ceed in forma pauperis on appeal is granted, and he is reminded of his obligation to continue making partial payments until the final fee has been paid. His request for costs on appeal is denied.

Entered for the Court
Stephen H. Anderson Circuit Judge