* This order and judgment is not binding precedent, except under the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

APR 12 2000

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

DARRYL MONTGOMERY,

Plaintiff-Appellant,

v.

STEVE KAISER; TAYLOR

CHANDLER; RACHEL DURANT;

WILLIAM VOCULES; A. FOSTER,

Defendants-Appellees.

No. 99-7099

(D.C. No. 98-CV-531-S)

(E.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA , ANDERSON , and LUCERO , 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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.
1 The district court assumed that defendants, who are employees of a private

prison, acted under color of state law and were thereby open to liability under

§ 1983. For purposes of this appeal, we make the same assumption. In light of

our reversal, however, the district court will need to address this question on

remand. See Richardson v. McKnight , 521 U.S. 399, 413 (1997).

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Plaintiff filed this action pursuant to 42 U.S.C. § 1983, alleging violation

of his Fourteenth Amendment right to due process. 1 The district court dismissed

the complaint under 28 U.S.C. § 1915(e) as frivolous, stating that it was without

merit and lacked an arguable basis in fact or law. We review the § 1915(e)

dismissal for an abuse of discretion. See McWilliams v. Colorado , 121 F.3d 573,

574-75 (10th Cir. 1997). Guided by this standard, we reverse and remand.

Plaintiff was incarcerated in the Davis Correctional Facility in Oklahoma

when an individual outside the prison sent him an envelope in the mail containing

$1,200 in cash, which plaintiff claims was to enable him to hire an attorney. 

Prison officials completed a “Correspondence/Package/Contraband Denial Form,”

informing plaintiff that the correspondence had been reviewed and denied

pursuant to prison policy that cash cannot be sent through the facility. The form

further indicated that, pending investigation, the reason for denial of the

correspondence was “Plans for sending contraband in or out of the facility.” 

R. Vol. I, attachment to complaint. The form asked whether plaintiff wished to

appeal the denial; plaintiff checked “No.” The next form question was whether
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plaintiff wished to pay to have the correspondence returned; plaintiff checked

“Yes.”

Apparently while the contraband investigation was still pending, plaintiff

was transferred out of the Davis Correctional Facility and eventually to the

Oklahoma State Prison. Plaintiff wrote numerous letters and made official

requests to the correctional facility, asking that his property be returned to him. 

Eventually, he received his personal belongings, but he never received the cash,

which was deposited in the inmate welfare fund at the correctional facility. 

Plaintiff attempted to file a grievance with the correctional facility, but was

informed that the grievance was untimely because it was not filed within seven

days. Plaintiff explains that he saw no need to file a grievance after he completed

the denial form asking that the money be returned to the sender. It was only after

he learned the money had not been returned but had been forfeited that he realized

the need for action.

In their brief on appeal, defendants state that “the money which had been

confiscated at the Davis Correctional Facility was deposited into the inmate

welfare fund in accordance with the policy and procedure at Davis Correctional

Facility regarding contraband.” Appellee’s Br. at 2. Plaintiff challenges the

policy by which he was relieved of his money without predeprivation process as

violative of his right to procedural due process.
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Plaintiff has a property interest in money received from people outside the

prison. See Gillihan v. Shillinger , 872 F.2d 935, 938 (10th Cir. 1989). There can

be no question that a deprivation of property without due process gives rise to a

claim under § 1983. See id. at 939. In dismissing plaintiff’s complaint as

frivolous, the district court relied on the holding of Hudson v. Palmer , 468 U.S.

517 (1984), finding that “neither negligent [nor] intentional deprivation of a

prisoner’s property under color of state law gives rise to a due process violation,

if state law provides an adequate post-deprivation remedy.” R. Vol. I, district

court order at 2. The district court erred in applying Hudson to this case.

We have interpreted Hudson as holding that “neither negligent nor

intentional deprivations of property under color of state law that are random and

unauthorized give rise to a § 1983 claim where the plaintiff has an adequate state

remedy.” Gillihan , 872 F.2d at 939 (emphasis added) (citing Hudson , 468 U.S. at

533, and Parratt v. Taylor , 451 U.S. 527, 541 (1981), overruled in part on other

grounds , Daniels v. Williams , 474 U.S. 327 (1986)). In Hudson , the Supreme

Court addressed “random and unauthorized deprivations of property rather than

deprivations according to some established state policy, procedure, or custom.” 

Gillihan , 872 F.2d at 939.

[W]hen the deprivation is not random and unauthorized, but is

pursuant to an affirmatively established or de facto policy, procedure,

or custom, the state has the power to control the deprivation and,

therefore, generally must, in the absence of compelling reasons to the
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contrary, give the plaintiff a predeprivation hearing. In such cases,

the availability of an adequate state post-deprivation remedy is

irrelevant and does not bar a § 1983 claim.

Id. at 939-40 (citations omitted). This case does not involve random or

unauthorized actions by the prison officials. Here, prison officials took

plaintiff’s money pursuant to the policy in place at the Davis Correctional

Facility. See Appellee’s Br. at 2. Plaintiff challenges the manner in which he

was deprived of his money in this § 1983 action, and defendants acknowledge that

the money was deposited into the inmate welfare fund in accordance with prison

policy.

Because plaintiff was deprived of his money not as the result of a random

or unauthorized act by prison officials, but pursuant to policy of the Davis

Correctional Facility, Hudson and its progeny do not apply to this case. See

Gillihan , 872 F.2d at 939-40. Consequently, the district court’s dismissal of this

action as frivolous based on Hudson was an abuse of discretion. We REVERSE

the district court’s dismissal of the complaint as frivolous under § 1915(e) based 
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on Hudson and REMAND for further proceedings consistent with this order and

judgment.

Entered for the Court

Stephen H. Anderson 

Circuit Judge