Ronald Del Raine v. Frank Nessmith, Administrative Support Officer Usp Leavenworth

67 F.3d 312, 1995 U.S. App. LEXIS 32970, 1995 WL 564505

• Court: Court of Appeals for the Tenth Circuit
• Decided: September 22, 1995
• Docket: 95-3137
• Status: Published

Opinion

67 F.3d 312

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Ronald Del RAINE, Plaintiff-Appellant,
v.
Frank NESSMITH, Administrative Support Officer USP
Leavenworth, Defendant-Appellee.

No. 95-3137.

United States Court of Appeals, Tenth Circuit.

Sept. 22, 1995.

ORDER AND JUDGMENT1

Before TACHA, LOGAN and KELLY, Circuit Judges.2

Plaintiff, an inmate in federal penitentiary, appeals the district court's dismissal of his complaint for failure to state a claim.

Mr. Del Raine filed this action on March 23, 1995, alleging that Mr. Nessmith, a prison officer, knowingly signed a false incident report, resulting in Mr. Del Raine's being placed in isolation confinement. See I.R. doc. 2. The district court dismissed sua sponte Mr. Del Raine's complaint for failure to state a claim.

We review de novo the district court's dismissal for failure to state a claim. Despite Mr. Del Raine's assertions, a district court may dismiss a claim sua sponte "when it is patently obvious' that the plaintiff could not prevail on the facts alleged." McKinney v. Oklahoma Dept. of Human Services, 925 F.2d 363, 365 (10th Cir.1991) (quoting Baker v. Director, United States Parole Comm'n, 916 F.2d 725, 727 (D.C.Cir.1990)). The allegations of wrongdoing in Mr. Del Raine's complaint are inadequate to support his claim that he was denied constitutional due process. Where due process has been afforded, merely alleging that a prison official falsified a report does not state a claim for which relief can be granted. Hanrahan v. Lane, 747 F.2d 1137, 1141 (7th Cir.1984). The district court relied on the process afforded by the Discipline Committee and Discipline Hearing Officer as providing due process, and Mr. Del Raine has not alleged otherwise. See Wolff v. McDonnell, 418 U.S. 539, 558-63 (1974).

AFFIRMED. We GRANT Mr. Del Raine's motion for leave to proceed on appeal without prepayment of costs or fees. The mandate shall issue forthwith.

1 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 the court's General Order. 151 F.R.D. 470 (10th Cir.1993)

2 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); 10th Cir. R. 34.1.9. The cause therefore is ordered submitted without oral argument