* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

F I L E D

United States Court of Appeals

Tenth Circuit

SEP 26 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIAN CAVENDER; RICHARD

DOWDELL; DONALD GEE;

DAVID R. HARTLEY; PATRICK

JOHN MCATEE; DERRICK R.

PARKHURST,

Plaintiffs-Appellants,

and

PAUL D. HOLMES; TERRY

HUGHES; JERRY SCHMIDT,

Plaintiffs,

v.

JUDY UPHOFF; DUANE

SHILLINGER; STAN JAMES;

RONALD G. RUETTGERS; D.K.

PIPPIN, in their individual capacities,

Defendants-Appellees.

No. 96-8067

(D.C. No. 95-CV-81)

(D. Wyo.)

ORDER AND JUDGMENT*
1 The provisions of 28 U.S.C. § 1915(d) have been recodified at 28

U.S.C. 1915(e).

-2-

Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, this 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 case is therefore

ordered submitted without oral argument.

Plaintiffs filed this action pursuant to 42 U.S.C. § 1983, alleging that

defendants’ deprived them of their property without due process, thus violating

their rights under the Fourteenth Amendment. The magistrate judge

recommended dismissal of the action for failure to exhaust administrative

remedies. The district court adopted the magistrate judge’s report and

recommendation insofar as it recommended dismissal of two of the plaintiffs’

claims for failure to exhaust their administrative remedies. The district court

went on, however, to dismiss the complaint, as to all plaintiffs, as frivolous under

28 U.S.C. § 1915(d), concluding that plaintiffs had failed to state a cause of

action under 42 U.S.C. § 1983.1

Deprivation of a prisoner’s property by a state employee does not violate

procedural due process rights if an adequate state post-deprivation remedy exists. 
-3-

See Hudson v. Palmer, 468 U.S. 517, 531-33 (1984). The district court cited

Wyo. Stat. Ann. §§ 1-39-112, 1-39-103(a)(iii), and 7-2-101(a)(iv)(H), in finding

that the State of Wyoming has waived sovereign immunity for torts resulting from

the actions of detention officers acting within the scope of their official duties,

and, therefore, an adequate state remedy exists to address plaintiffs’ complaints. 

On appeal, plaintiffs take issue with the adequacy and availability to them of the

state law tort remedy. In their brief on appeal, defendants maintain that this court

does not need to determine hypothetically the availability of relief under state tort

law, because the Wyoming Department of Corrections Inmate Grievance

Procedure afforded plaintiffs an adequate postdeprivation remedy.

We review the district court’s dismissal under § 1915(d) for an abuse of

discretion. See Schlicher v. Thomas, 111 F.3d 777, 779 (10th Cir. 1997). Further,

we can affirm on any basis supported by the record. See United States v.

Sandoval, 29 F.3d 537, 542 n.6 (10th Cir. 1994). A state’s action of depriving a

prisoner of property without due process “is not complete until and unless it

provides or refuses to provide a suitable postdeprivation remedy.” Hudson, 468

U.S. at 533. Thus, plaintiffs were required to plead and prove the absence of an

adequate postdeprivation remedy in order to state a claim for violation of their

rights to due process in their § 1983 action.
-4-

Plaintiffs allege in their complaint that they should not be required to

exhaust administrative remedies available to them because the inmate grievance

procedure does not provide for monetary relief. Although not raised in the

context of whether the prison grievance procedure provides an adequate

postdeprivation remedy for purposes of Fourteenth Amendment due process

rights, we will liberally construe this allegation as going to the inadequacy of the

grievance procedure as a remedy to address the deprivation of property. The

allegation that the grievance procedure does not provide for monetary relief is

belied, however, by subsequent statements in the complaint where plaintiffs set

forth facts indicating that certain of the plaintiffs were offered monetary

compensation through the grievance procedure. In fact, the State of Wyoming

Department of Corrections’ Administrative Regulations provide that the inmate

grievance procedure will provide for, among other remedies, restoration of or

restitution for personal property. See App. to Appellees’ Br., Ex. B,

Administrative Reg. at 6. The State of Wyoming Department of Corrections’

inmate grievance procedure received certification as in compliance with the Civil

Rights of Institutionalized Persons Act, 42 U.S.C. § 1997e, see App. to

Appellees’ Br. at Ex. B, and it provides an adequate postdeprivation remedy for

plaintiffs’ complaints. See Hudson, 468 U.S. at 536 n.15; Al-Ra’id v. Ingle, 69
2 This appeal is frivolous or fails to state a claim under 28 U.S.C.

§ 1915(e)(2)(B)(i) or (ii) for purposes of counting “prior occasions” under 28

U.S.C. § 1915(g).

-5-

F.3d 28, 32 (5th Cir. 1995); Phelps v. Anderson & Langford, 700 F.2d 147, 149

(4th Cir. 1983).

Because plaintiffs do not plead and show the inadequacy or unavailability

of postdeprivation remedies, we agree with the district court’s conclusion that

plaintiffs have not stated a cause of action under 42 U.S.C. § 1983. We AFFIRM

the district court’s dismissal under § 1915(d) as frivolous.2

 The applications to

proceed in forma pauperis are granted, and all other outstanding motions are

denied. The mandate shall issue forthwith.

Entered for the Court

Michael R. Murphy

Circuit Judge