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

### NOV 15 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

DENNIS AKERVIK,

Plaintiff-Appellant,

v. M.E. RAY, Warden, Federal Bureau of Prisons; (FNU) KENNEY, Senior Corrections Officer, USP Leavenworth; (FNU) SOMERS, Senior Correctional Officer, USP Leavenworth; (FNU) REED, Senior Correctional Officer, USP Leavenworth; (FNU) DENNEY, Psychologist, USP Leavenworth; JACOBS, (FNU), Senior Correctional Officer, USP Leavenworth; LT. ODEM, (FNU), Correctional Officer, USP Leavenworth; (FNU) HUTCHISON, Senior Correctional Officer, USP Leavenworth; (FNU) BEARD, Senior Correctional Officer, USP Leavenworth; (FNU) TOUNGATE, Senior Correctional Officer, USP Leavenworth; (FNU) BEAZ, Assistant Warden, USP Leavenworth; (FNU) PIERCE, Unit Manager, USP Leavenworth; FED. EMPLOYEE UNION,

Defendants-Appellees. No. 01-3072 (D.C. No. 01-CV-3013-GTV)

(D. Kan.)* This order and judgment is not binding precedent, e xcept under the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. -2- DENNIS AKERVIK,

Plaintiff-Appellant,

v. M.E. RAY, Warden, USP Leavenworth,

Defendant-Appellee. No. 01-3075 (D.C. No. 01-CV-3037-GTV)

(D. Kan.)

ORDER AND JUDGMENT *

Before EBEL , KELLY , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T hese cases are therefore ordered submitted without oral argume nt. Plaintiff initiated these two civil actions againstthe warden and/or others at the United States Penitentiary at Leavenworth, Kans as, complaining generally of various actions allegedly taken against him and oth er prison inmates.1 See Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics ,

403 U.S. 388 (1971). -3- No. 01-3072 Plaintiff filed this Bivens 1 action against the warden and other correctional officers at the federal penitentiary at Leavenworth , Kansas. He alleged he was subjected to abuse and prejudice because of his sexual orientation and subjected to verbal and sexual harassment. R., Doc. 1 at 4. He contended that the defendants “had knowledge of and failed to effectuate change [of their actions], knowing also that an excessive risk to plaintiffs [sic] safety existed.” Id. at 5. He claimed he was denied use of the “law library, c leaning supplies, haircuts, employment and similar programs provided other inmates.” Id. He further asserted that certain officers were engaged in graft “to inmates to conduct illegal activities including assault” and that he was firedfrom his job as an orderly because of his sexual orientation. Id. He also claimed institution-wide misbehavior by officials, id. at 5(a), and argues that Leavenworth is outdated, poses security and safety concerns and should be closed, id. at 5(b). The district court dismissed the action for failure to state a claim upon which relief could be granted under 28 U.S.C. § 191 5(e)(2)(B)(ii). The court ruled that verbal abuse is insufficient to state a constitutional violation and that plaintiff’s general claims of discrimination were c onclusory and without factual-4-

support. R., Doc. 15 at 2. The court further conc luded that plaintiff lacked standing to prosecute his “sweeping allegations of corruption and mismanagement” at Leavenworth. Id. Plaintiff filed an “objection” to the dismissal of his complaint, claiming, inter alia, that he had been “assaulted twice by st aff, resulting in injuries,” with no further details, no dates, no named defendants. He argued that the court had failed to hear his other motions and that he had “s tated several claims which should not be ignored.” R., Doc. 17 at 2, 5. He a lso filed a notice of appeal. The court construed the objection as a Fed. R. Civ. P. 59(e) motion, denied it, and granted leave to proceed on appeal by making partial payments, reminding plaintiff of his prior and current obligations to p ay filing fees as authorized by 28 U.S.C. § 1915(b)(2). In his pro se brief on appeal, plaintiff again allu des to assaults but without providing any further factual support. He does notargue that he has been denied access to legal resources, but rather that his clai ms have been ignored within the prison administrative system. He claims to have su bmitted over fifty letters to the warden requesting relief. We review de novo the di strict court’s dismissal of plaintiff’s complaint for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii). Perkins v. Kan. Dep’t of Corr. , 165 F.3d 803, 806 (10th Cir. 1999).-5-

We hold that the district court’s sua sponte dismis sal of the complaint was proper. See Whitney v. New Mexico , 113 F.3d 1170, 1173 (10th Cir. 1997). Verbal harassment alone does not state a constitutional violation. See Collins v. Cundy , 603 F.2d 825, 827 (10th Cir. 1979). Denial of us e of the law library is not actionable if there has been no claim of prejud ice to existing or future legal actions. See Lewis v. Casey , 518 U.S. 343, 351-53 (1996). In addition, plaint iff has failed to link the alleged facts underlying mis conduct and constitutional violations to any specific acts of the defendants. See Frazier v. Dubois , 922 F.2d 560, 562 n.1 (10th Cir. 1990) (pro se litigants mus t have some minimal level of factual support for claims); Bennett v. Passic , 545 F.2d 1260, 1262 (10th Cir. 1976) (personal participation is essential allegati on in civil rights claim). The allegation that the federal employees’ union has je opardized the safe and orderly running of the facility is simply too vague and con clusory to state a claim for relief, and we “will not supply additional factual allegations to round out a plaintiff’s complaint or construct a legal theoryon a plaintiff’s behalf.” Whitney , 113 F.3d at 1175. See also Hudson v. McMillian , 503 U.S. 1, 9 (1992) (not every push or shove violates prisoner’s constitutional rights); Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991) (conclusory allegations without supporting facts averments insufficient to state cl aim for relief).-6-

The district court’s dismissal of this action under28 U.S.C. § 1915(e)(2)(B)(ii) constitutes a prior occasion for purposes of § 191 5(g) (counting in forma pauperis actions by prisoners wh ich are dismissed as frivolous, malicious or failing to state claim for relief). W e also dismiss the appeal as frivolous; plaintiff has therefore accumulated two prior occasions or strikes. See Jennings v. Natrona County Det. Ctr. Med. Facility , 175 F.3d 775, 780 (10th Cir. 1999) (dismissal by district court for failure to s tate claim followed by appellate dismissal constitutes two strikes). Plaintiff is n onetheless reminded of his obligation to continue making partial payments unti l the entire docketing fee is paid in full.

No. 01-3075 In this action, plaintiff alleged that the defendants violated the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-2680;1346 , by confiscating and subsequently destroying his original art work (draw ings, sketches, designs, paintings), causing him irreparable harm. R., Doc. 1 at 5. He sought compensatory damages of $250,000 and punitive damag es of $5,000,000. He also asked that the Bureau of Prisons (BOP) provide rece ipts for all confiscated items to allow for redress. Id. at 6. The court construed the action as brought pursuant to Bivens , 403 U.S. at 388; R., Doc. 8. The court further held that pl aintiff had merely alleged-7-

negligence in official action resulting in injury to plaintiff’s property. R., Doc. 8 at 2. The court concluded that “[a]bsent sufficient factual allegations of intentional or reckless conduct by the government o fficial [that] caused the plaintiff’s injury, no cognizable constitutional claim is stated.” Id. at 2 (citing Daniels v. Williams , 474 U.S. 327, 328-31 (1986); Davidson v. Cannon , 474 U.S. 344 (1986)). A pro se complaint is only properly dismissed for f ailure to state a claim if plaintiff obviously cannot prevail on the facts and , additionally, it would be futile to allow him to amend his complaint. Oxendine v. Kaplan , 241 F.3d 1272, 1275 (10th Cir. 2001). We review de novo the dismissal of plaintiff’s complaint for failure to state a claim. We agree with the district court that the negligentdeprivation of property does not constitute a deprivation of due process under Daniels v. Williams , 474 U.S. at 333-34. Nor will an action lie for the intentional deprivation of property if there is a meaningful postdeprivation r emedy for the loss available.
See Hudson v. Palmer , 468 U.S. 517, 531-33 (1984). The FTCA provides just such a post-deprivation reme dy, and, attached to plaintiff’s complaint are documents indicating plai ntiff has pursued the administrative procedure required as a prerequisite to filing an FTCA claim.
See 28 U.S.C. § 543.30-543.32. Accordingly, the distr ict court should have-8-

considered plaintiff’s complaint under the provisio ns of the FTCA. In addition, to the extent that plaintiff seeks injunctive relie f and/or punitive damages for the intentional deprivation of property, these remedies are available in a Bivens action but not in one brought under the FTCA. See Carlson v. Green , 446 U.S. 14, 22 (1980) (punitive damages available in Bivens action but prohibited under FTCA). In this regard, FTCA and Bivens are “parallel, complementary causes of action.” Id. at 20; see also United States v. Smith , 499 U.S. 160, 166-67 (1991) (FTCA not exclusive remedy for torts of Government employees when injured plaintiff brings Bivens action). Here, plaintiff does not specifically claim that hi s property was negligently confiscated. Inartful as his pleadings are, he ass erts that his artworks (which he describes by the type of medium used) were taken fr om his cell and disposed of before his remedies were exhausted. R. Doc. 1 at 4 . He claims his due process rights were denied, that the defendants “stole and destroyed works of original art,” that the defendants knew or should have knownthat their actions “would cause serious constitutional questions” and acted w ith “‘evil motive and intent.’” We leave it to the court on remand to determine whe ther plaintiff has stated a claim for intentional or reckless conduct, for ne gligent conduct, or both. We express no opinion as to whether plaintiff has adeq uately exhausted all available remedies. See Yousef v. Reno , 254 F.3d 1214, 1221 (10th Cir. 2001)-9-

(recognizing requirement under 28 U.S.C. § 1997e(a) that exhaustion is mandated “‘regardless of the relief offered through administrative procedures.’” (quoting Booth v. Churner , 121 S. Ct. 1819, 1825 (2001). The appeal in No. 01-3072 is DISMISSED as frivolous , counting as two prior occasions under 28 U.S.C. § 1915(g). See Jennings , 175 F.3d at 780. The judgment of the district court in No. 01-3075 i s REVERSED, and the cause is REMANDED for further proceedings. Neitherthe district court’s original dismissal nor this court’s reversal count as a prior occasion. The mandates shall issue forthwith.

Entered for the Court

David M. Ebel Circuit Judge