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. 

F I LED

United States Court of Appeals

Tenth Circuit

August 30, 2006

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GEORGE W. STEFFEY, JR.,

Plaintiff-Appellant,

v.

DAVID ORMAN, MIKE MULLIN,

K. WINGO, MELODY BRYANT,

GARY GIBSON, RON WARD,

MELINDA GUILFOYLE., in their

individual and official capacities,

Defendants-Appellees.

No. 05-7064

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OKLAHOMA

(D.C. No. 02-CV-497-P)

Submitted on the briefs:*

George W. Steffey, Jr., Pro Se.

Gregory Thomas Metcalfe, Assistant Attorney General, Oklahoma Attorney

General’s Office, Oklahoma City, Oklahoma, for Defendants-Appellees.
The rule, OSP-120230-02, states in relevant part: 1

X. Persons on an inmate visiting list, family members not on an

inmate visiting list, or known acquaintances of any inmate may not

send monies into the facility for deposit in another inmate’s trust

fund account. 

XI. When there is reason to believe that an inmate, in collusion with

family members, friends, or known acquaintances, is attempting to

(continued...)

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Before PORFILIO, BALDOCK, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

Plaintiff George W. Steffey, an Oklahoma state prisoner appearing pro se,

filed a 42 U.S.C. § 1983 civil rights complaint against prison officials alleging

that they deprived him of his property in violation of his constitutional due

process rights when they confiscated a money order sent to him. The district

court granted summary judgment in favor of defendants. We affirm. 

BACKGROUND

The following is undisputed. Mr. Steffey was incarcerated at the Oklahoma

State Penitentiary (OSP) at all times relevant to this appeal. OSP prison rules

prohibit an inmate from receiving money from family members of any other

inmate, and permit OSP to confiscate any monies sent to an inmate in violation of

these rules. Pam Grubb, the mother of an Oklahoma Department of Corrections 1
(...continued) 1

circumvent facility rules by transferring funds to another inmate, the

incoming money orders will be held until a thorough investigation

has been conducted. If the investigation reveals that an attempt to

circumvent facility rules has occurred, the money orders will be

considered contraband and will not be returned to the sender. 

XII. In the event a money order is confiscated as contraband, the

intended recipient inmate and the sender will be notified in writing of

the action by the person who stopped the transfer. 

R. Doc. 21, Ex. D, at 2.

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(ODOC) inmate, sent Mr. Steffey a fifty-dollar money order at OSP. OSP prison

officials immediately notified Mr. Steffey that Ms. Grubb’s name appeared on a

prison list of ODOC family members, that the money order therefore violated

OSP-120230-02, and, as a result, had been confiscated as contraband. The funds

were never deposited into Mr. Steffey’s inmate trust account, nor were they

returned to Ms. Grubb. 

Mr. Steffey used the OSP prison grievance process to challenge the

confiscation. After exhausting his administrative remedies, Mr. Steffey filed his

§ 1983 civil rights complaint alleging that the confiscation of these funds

deprived him of his property in violation of his due process rights. The district

court dismissed the complaint against the ODOC and the individual defendants in

their official capacities because these defendants are immune from suit under the

Eleventh Amendment. It also dismissed the claims against numerous defendants
Another remaining defendant, Gary Gibson, the former OSP warden, died 2

on September 12, 2003. Defendants’ counsel filed a suggestion of death pursuant

to Fed. R. Civ. P. 25(a)(1), and Mr. Steffey did not file a motion for substitution

of parties. Accordingly, Mr. Gibson is dismissed. See id.

-4-

based on a lack of personal participation in the alleged violations. Mr. Steffey

does not appeal these rulings. 

The only remaining defendant was David Orman, the OSP official who 2

confiscated the funds. The district court ruled that Mr. Orman was entitled to

qualified immunity because his actions did not violate Mr. Steffey’s constitutional

rights. The court ruled it was undisputed that the money order violated

OSP-120230-02, because Mr. Steffey admitted during his administrative

grievance proceedings that Ms. Grubb was the mother of an ODOC inmate. It

ruled the money order was, therefore, contraband upon receipt at the prison, that

Mr. Steffey never acquired any property interest in the contraband money order

and, thus, had no right to any predeprivation due process hearing with respect to

the confiscation of those funds. Mr. Steffey appeals this ruling. 

ANALYSIS

“We review the grant of summary judgment de novo, applying the same

standard the district court should apply under Fed. R. Civ. P. 56(c).” Camuglia v.

City of Albuquerque, 448 F.3d 1214, 1218 (10th Cir. 2006) (quotation omitted). 

Because Mr. Orman asserted a qualified immunity defense, however, the summary

judgment standards are subject to a somewhat different analysis from other
-5-

summary judgment rulings. See Lighton v. Univ. of Utah, 209 F.3d 1213, 1221

(10th Cir. 2000). “Qualified immunity is designed to shield public officials from

liability and ensure that erroneous suits do not even go to trial.” Albright v.

Rodriguez, 51 F.3d 1531, 1534 (10th Cir. 1995) (quotation omitted). When a

defendant bases a motion for summary judgment on the defense of qualified

immunity, the plaintiff must show that the defendant’s actions violated a specific

statutory or constitutional right, and that “the constitutional or statutory rights the

defendant allegedly violated were clearly established at the time of the conduct at

issue.” Id.

Due Process Claim

A due process claim under the Fourteenth Amendment can only be

maintained where there exists a constitutionally cognizable liberty or property

interest with which the state has interfered. See Bd. of Regents of State Colls. v.

Roth, 408 U.S. 564, 569 (1972) (“The requirements of procedural due process

apply only to the deprivation of interests encompassed by the Fourteenth

Amendment’s protection of liberty and property.”). The district court analyzed

Mr. Steffey’s property interest claim under the analytical framework set forth in

Gillihan v. Shillinger, 872 F.2d 935 (10th Cir. 1989) (per curiam). There, this

court held that, absent compelling reasons to the contrary, prisoners are entitled to

a predeprivation hearing before a prison can deprive the inmate of property

pursuant to an affirmatively established policy. Id. at 939-40. The district court
The Second and Fifth Circuits have held that Sandin applies only to liberty 3

interests claims. Handberry v. Thompson, 446 F.3d 335, 353 n.6 (2d Cir. 2006)

(“Sandin was concerned with the proper definition of liberty interests, not

property interests.”); Bulger v. U.S. Bureau of Prisons, 65 F.3d 48, 50 (5th Cir.

(continued...)

-6-

distinguished Gillihan and its predeprivation-hearing requirement on the basis

that Mr. Steffey had no property interest in the money order because it was

contraband.

The requirement in Gillihan of a predeprivation hearing is relevant only if

an inmate first demonstrates that he has a protected property interest, id. at 938,

and here we conclude that Mr. Steffey had no property right protected by the

Fourteenth Amendment to receive a contraband money order while in prison. In

Sandin v. Conner, 515 U.S. 472 (1995), decided after Gillihan, the Supreme Court

held that a deprivation occasioned by prison conditions or a prison regulation

does not reach protected liberty interest status and require procedural due process

protection unless it imposes an “atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life.” Sandin, 515 U.S. at 484. This

court has ruled that property interest claims by prisoners are also to be reviewed

under Sandin’s atypical-and-significant-deprivation analysis. Cosco v. Uphoff,

195 F.3d 1221, 1224 (10th Cir. 1999); see also Murdock v. Washington, 193 F.3d

510, 513 (7th Cir. 1999) (suggesting but not expressly holding that Sandin applies

to property interest claims brought by prisoners); Abdul-Wadood v. Nathan,

91 F.3d 1023, 1025 (7th Cir. 1996) (same). We ruled in Cosco that, “[t]he 3
(...continued) 3

1995) (declining to extend Sandin’s “atypical and significant hardship” analysis

to property claims by prisoners). As we noted in Cosco, the Sixth and Ninth

Circuits have suggested, but not explicitly held, that Sandin does not govern

prisoner property interest claims. Cosco, 195 F.3d at 1223 n.3 (citing cases).

-7-

Supreme Court mandate since Sandin is that henceforth we are to review property

and liberty interest claims arising from prison conditions by asking whether the

prison condition complained of presents ‘the type of atypical, significant

deprivation in which a State might conceivably create a liberty [or property]

interest.’” Id. at 1224 (alteration in original, quoting Sandin, 515 U.S. at 486). 

“[L]awful incarceration brings about the necessary withdrawal or limitation

of many privileges and rights, a retraction justified by the considerations

underlying our penal system.” Sandin, 515 U.S. at 485 (citation and quotation

omitted). The Supreme Court has long recognized that an inmate’s right to

receive mail and other packages may be limited by prison regulations that are

reasonably related to legitimate penological interests. See Thornburgh v. Abbott,

490 U.S. 401, 416 (1989) (holding that prison authorities have broad discretion in

regulating the entry of material into a prison); Turner v. Safley, 482 U.S. 78,

91-92 (1987) (upholding prison restrictions on mail as reasonably related to

legitimate security concerns); Bell v. Wolfish, 441 U.S. 520, 550, 555 (1979)

(upholding ban on inmate receipt of certain hardback books and packages

containing personal property and food in order to counter risk of smuggled

contraband). 
-8-

Prison officials at OSP have a legitimate interest in controlling both the

amount and source of funds received by inmates. OSP presented evidence that

OSP-120230-02 serves its legitimate penological interest in preventing inmates

from using their family members to pay off their drug, gambling or other debts to

fellow inmates, or from extorting money from an inmate’s family with threats of

harm. Substantial deference is given to the professional judgment of prison

administrators because they have “significant responsibility for defining the

legitimate goals of [the prison] and for determining the most appropriate means to

accomplish them.” Overton v. Bazzetta, 539 U.S. 126, 132 (2003). Mr. Steffey

asserts no legal or evidentiary challenge to the validity of OSP-120230-02. 

Overton, 539 U.S. at 132 (holding that burden is not on the state to prove the

validity of the prison regulation, but on the prisoner to disprove it). We therefore

conclude that OSP-120230-02 is reasonably related to a legitimate penological

interest and is a valid restriction on Mr. Steffey’s right to receive money from

certain outside sources. See Overton, 539 U.S. at 132. 

Likewise, Mr. Steffey has presented no evidence or authority for the

proposition that the deprivation here was an “atypical and significant hardship”

that subjected him to conditions much different from those ordinarily experienced

by inmates serving their sentences in the customary fashion. As noted above, it is

well-established that prisons have broad discretion in regulating the entry of

materials into prison. More specifically, the Supreme Court long ago
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characterized the receipt of money as one type of contraband that prison officials

could legitimately ban. See Bell, 441 U.S. at 551, 559 (upholding prison

regulatory ban on inmate receipt of packages because “[s]muggling of money,

drugs, weapons, and other contraband is all too common an occurrence”).

Decisions from this and other circuits demonstrate that the seizure and forfeiture

of currency as contraband is a typical incident of prison life, and is not a

significant property interest deprivation. See Cosco, 195 F.3d at 1224 (holding

that regulation of the type and quantity of personal property inmates may possess

in their cells is a not an atypical, significant hardship of prison life); Harris v.

Forsyth, 735 F.2d 1235, 1236 (11th Cir. 1984) (holding that prison’s confiscation

of contraband currency is reasonable restriction on property rights); Lyon v.

Farrier, 730 F.2d 525, 527 (8th Cir. 1984) (ruling that inmate “cannot seriously

argue” he has a protected property interest in contraband personal property found

in cell); Sullivan v. Ford, 609 F.2d 197, 198 (5th Cir. 1980) (concluding no due

process violation where prison confiscated contraband currency in cell).

Nor is it difficult to conclude that the property interest involved here is

insignificant. Mr. Steffey’s interest in the fifty-dollar money order was no more

than an inchoate, unrealized expectation in a gift of contraband funds. “To have a

property interest in a benefit, a person clearly must have more than an abstract

need or desire for it. He must have more than a unilateral expectation of it. He

must, instead, have a legitimate claim of entitlement to it.” Roth, 408 U.S. at
In Gillihan, we stated that inmates have a “property interest” in receiving 4

money from “friends and family outside the prison.” 872 F.2d at 938. That

statement appears to be dicta, however, because it is not apparent from the

decision that any monies from outside sources were at issue in that case. Gillihan

is also distinguishable from this case because the money at issue there was not

contraband. Finally, Gillihan was decided before this court held in Cosco,

195 F.3d at 1224, that the property-interest due-process rights of prisoners are to

be determined based on the nature of the deprivation in accordance with the

“atypical and significant” deprivation analysis articulated in Sandin. 

-10-

577. It cannot be said that Mr. Steffey had a legitimate claim of entitlement to

the money order.4

Thus, given the validity of the regulation in OSP-120230-02, and the

typical, insignificant nature of the deprivation, we conclude that Mr. Orman did

not violate Mr. Steffey’s rights under the Due Process clause of the Fourteenth

Amendment when it confiscated the contraband money order. Therefore, we find

no error in the district court’s grant of summary judgment. 

Request for Appointed Counsel

Mr. Steffey also contends that the district court erred in denying his motion

to appoint counsel. This court “review[s] a district court’s refusal to appoint

counsel for an indigent prisoner in a civil case for an abuse of discretion. The

burden is on the applicant to convince the court that there is sufficient merit to his

claim to warrant the appointment of counsel.” Hill v. SmithKline Beecham Corp.,

393 F.3d 1111, 1115 (10th Cir. 2004) (quotation and citation omitted). It is not

enough “that having counsel appointed would have assisted [the prisoner] in

presenting his strongest possible case, [as] the same could be said in any case.”
-11-

Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995). “Only in those

extreme cases where the lack of counsel results in fundamental unfairness will the

district court’s decision be overturned.” Hill, 393 F.3d at 1115 (quotation

omitted). In evaluating a prisoner’s request for appointed counsel, the court

should consider “the merits of the prisoner’s claims, the nature and complexity of

the factual and legal issues, and the prisoner’s ability to investigate the facts and

present his claims.” Id. 

Lack of counsel in this case has not resulted in fundamental unfairness. 

Mr. Steffey’s complaint and pleadings in the district court adequately presented

the factual and legal basis of his claim and demonstrated that he understood the

basics of his due-process property interest claim. Further, Mr. Steffey was

granted the liberal treatment accorded pro se litigants. Haines v. Kerner,

404 U.S. 519, 520-21 (1972). The district court did not abuse its discretion in

denying his motion for appointed counsel.

The judgment of the district court is AFFIRMED. Mr. Steffey’s

outstanding motions are DENIED.