Cosco v. Uphoff

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAR 28 1997 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

LOUIS DEAN COSCO, SCOTT BAILEY, DAVE BACON, TIMOTHY PAULEY, ORLAND GLENN, JEFF FULLER, and MIKE CROSS, No. 96-8069 Plaintiffs-Appellants, (D.C. No. 96-CV-19) (D. Wyo.) v.

JUDITH UPHOFF, Director, Wyoming Department of Corrections; JIM FERGUSON, Warden, Wyoming State Penitentiary,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before BALDOCK, EBEL, and LUCERO, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Plaintiffs, seven inmates of the Wyoming State Penitentiary appearing pro

se, appeal from the district court’s order dismissing their civil rights suit without

prejudice. We have jurisdiction under 28 U.S.C. § 1291, and affirm.

Plaintiffs are all long-term inmates who have acquired considerable

amounts of personal property over the years. Plaintiffs filed both grievances and

this suit under 42 U.S.C. § 1983 to challenge a proposed administrative regulation

that would have instituted severe restrictions on the types and amounts of

personal property any inmate could keep in his cell, and under which plaintiffs

claimed they would have been unconstitutionally required to dispose of much of

their property without compensation. After the suit was filed, defendants

informed the district court that they had decided not to adopt the proposed policy

as originally drafted. Instead, to resolve the numerous grievances challenging the

policy, defendants added a “grandfather” clause to allow inmates already in

possession of property in excess of the new limits, including plaintiffs, to keep

their property, subject to forfeiture later for various disciplinary infractions. See,

e.g., R. Vol. II, doc. 17, attachment at 1, 4. Although the original complaint was

then moot, plaintiffs requested leave to amend their complaint to challenge the

grievance resolutions, under which they claim they are still subject to being

unconstitutionally deprived of their property without compensation. The district

court denied leave to amend because plaintiffs had not alleged an actual injury

-2- and their claim was therefore not ripe for adjudication. The court dismissed

plaintiffs’ complaint without prejudice to refiling later.

Among various arguments on appeal, plaintiffs contend that: (1) the

district court erred in holding their claim was not ripe, and (2) defendants can be

sued in their official capacities for declaratory and injunctive relief. Defendants

counter that: (1) under Hudson v. Palmer, 468 U.S. 517 (1984), and Parratt v.

Taylor, 451 U.S. 527 (1981), overruled in part on other grounds by Daniels v.

Williams, 474 U.S. 327 (1986), plaintiffs do not state a claim for unconstitutional

deprivation of property unless they show that post-deprivation remedies are

inadequate; (2) plaintiffs failed to exhaust state remedies; (3) plaintiffs

erroneously sued defendants in their official capacities, in which they are entitled

to Eleventh Amendment immunity; and (4) plaintiffs seek an advisory opinion.

“Ripeness is a question of law, which we review de novo.” New Mexicans

For Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir. 1995). The

anticipated deprivations of property challenged here are those that will be

authorized by the new prison policy, not random or unauthorized forfeitures. For

this reason, “the availability of an adequate state post-deprivation remedy is

irrelevant and does not bar [plaintiffs’] § 1983 claim.” See Gillihan v. Shillinger,

872 F.2d 935, 939-40 (10th Cir. 1989). It is the adequacy of the state’s

predeprivation hearing that would be at issue here, if plaintiffs had alleged a

-3- deprivation of property had occurred or was imminent. See Abbott v. McCotter,

13 F.3d 1439, 1443 (10th Cir. 1994) (citing Gillihan, 872 F.2d at 939-40).

Plaintiffs are not required to exhaust state administrative remedies before

asserting their § 1983 claim. See Monroe v. Pape, 365 U.S. 167, 183 (1961),

overruled on other grounds by Monell v. Dep’t of Social Servs., 436 U.S. 658

(1978). Although plaintiffs erroneously sued defendants only in their official

capacities, in which they are both immune from claims for damages, see

Arizonans For Official English v. Arizona, 117 S. Ct. 1055, ___, 1997 WL 84990,

at *14 n.24 (Mar. 3, 1997), plaintiffs could easily correct that problem by

amending their complaint. See Griess v. Colorado, 841 F.2d 1042, 1045 (10th

Cir. 1988).

We nevertheless affirm the dismissal because plaintiffs have alleged no

actual injury. This creates not only a problem of ripeness but, more importantly,

of standing, because a mere potential injury “does not suffice for the concrete,

actual or imminent injury . . . required for standing”. See Smith v. Colorado

Dep’t of Corrections, 23 F.3d 339, 341 (10th Cir. 1994). As in Smith, “[a]t this

point, any alleged deprivation is conjectural and speculative.” Id. Plaintiffs’

conclusory allegation that the new policy does not provide for a predeprivation

hearing in various unspecified circumstances is too vague to demonstrate an

actual or imminent injury. Because plaintiffs do not claim to be able to remedy

-4- this defect, the district court did not abuse its discretion by denying them leave to

amend their complaint. See Reeder v. American Economy Ins. Co., 88 F.3d 892,

896 (10th Cir. 1996). We need not address the parties’ other arguments.

The judgment of the United States District Court for the District of

Wyoming is AFFIRMED.

Entered for the Court

David M. Ebel Circuit Judge

-5-