* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 19 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CHARLES MICHAEL KISSICK,

Plaintiff-Appellant,

v. TOMMY JAMES, R. G. THOMPSON,

Defendants-Appellees. No. 97-6165 (District of Oklahoma) (D.C. No. 96-CV-1166)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, PORFILIO, and MURPHY , Circuit Judges.
After examining the briefs and appellate record, th is 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 c ause 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.1 In reaching this conclusion, the district court rea soned as follows:

[Kissick’s] constitutional rights claim is based ona deprivation of property in violation of the due process clause. A s the magistrate judge noted, the record reflects that [Kissick’s] c omplaint about the confiscation procedure utilized is essentially a ne gligence 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 defe ndants intentionally kept his property, that contention is also insuffic ient 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-d eprivation remedy. Hudson v. Palmer , 468 U.S. 517, 533 (1984). In this case, [Kissick] has an adequate post-deprivation remedy u nder the FTCA if it is his contention that defendants acted outside their authority in confiscating his property. Dist. Ct. Order at 3. -2- 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 Feder al Correctional Institution in El Reno, Oklahoma. The district court granted summaryjudgment as to Kissick’s claims against the defendants in their official cap acity 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 again st the defendants in their individual capacity, the di strict court granted summary judgment to the defendants on qualified immunity gr ounds, reasoning that Kissick had not identified a clearly identified right or law which the defendants violated. 1-3-

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 dist rict court’s well-reasoned Order dated May 6, 1997. We also note that Kissick’s app eal is frivolous or fails to state a claim under 28 U.S.C. § 1915(e)(2)(B) for p urposes of counting “prior occasions” under 28 U.S.C. § 1915(g).
ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge