* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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 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 rec odified at 28

U.S.C. 1915(e). -2- Before ANDERSON, BARRETT, and MURPHY, Circuit Judge s.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase 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 withoutdue process, thus violating their rights under the Fourteenth Amendment. The m agistrate judge recommended dismissal of the action for failure to exhaust administrative remedies. The district court adopted the magistrat e 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 a ll plaintiffs, as frivolous under 28 U.S.C. § 1915(d), concluding that plaintiffs hadfailed to state a cause of action under 42 U.S.C. § 1983. 1 Deprivation of a prisoner’s property by a state emp loyee 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 immu nity 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, d efendants maintain that this court does not need to determine hypothetically the avail ability of relief under state tort law, because the Wyoming Department of Corrections Inmate Grievance Procedure afforded plaintiffs an adequate postdepri vation remedy. We review the district court’s dismissal under § 19 15(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 co mplete until and unless it provides or refuses to provide a suitable postdepri vation remedy.” Hudson , 468 U.S. at 533. Thus, plaintiffs were required to ple ad and prove the absence of an adequate postdeprivation remedy in order to state aclaim for violation of their rights to due process in their § 1983 action.-4-

Plaintiffs allege in their complaint that they shou ld not be required to exhaust administrative remedies available to them b ecause the inmate grievance procedure does not provide for monetary relief. Al though not raised in the context of whether the prison grievance procedure p rovides 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 depr ivation of property. The allegation that the grievance procedure does not pr ovide for monetary relief is belied, however, by subsequent statements in the co mplaint where plaintiffs set forth facts indicating that certain of the plaintif fs were offered monetary compensation through the grievance procedure. In f act, the State of Wyoming Department of Corrections’ Administrative Regulatio ns provide that the inmate grievance procedure will provide for, among other r emedies, restoration of or restitution for personal property. See App. to Appellees’ Br., Ex. B, Administrative Reg. at 6. The State of Wyoming Dep artment of Corrections’ inmate grievance procedure received certification a s 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 adequat e postdeprivation remedy for plaintiffs’ complaints. See Hudson , 468 U.S. at 536 n.15; Al-Ra’id v. Ingle , 692 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 & L angford , 700 F.2d 147, 149 (4th Cir. 1983). Because plaintiffs do not plead and show the inadeq uacy 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 f rivolous. 2The applications to proceed in forma pauperis are granted, and all othe r outstanding motions are denied. The mandate shall issue forthwith.

Entered for the Court

Michael R. Murphy Circuit Judge