Cosco v. Uphoff, 10th Cir. (1997)
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
LOUIS DEAN COSCO, SCOTT
BAILEY, DAVE BACON, TIMOTHY
PAULEY, ORLAND GLENN, JEFF
FULLER, and MIKE CROSS,
Plaintiffs-Appellants,
v.
United States Court of Appeals
Tenth Circuit
MAR 28 1997
PATRICK FISHER
Clerk
No. 96-8069
(D.C. No. 96-CV-19)
(D. Wyo.)
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This order and judgment is not binding precedent, except under the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 courts 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
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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 states
predeprivation hearing that would be at issue here, if plaintiffs had alleged a
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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. Dept 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
Dept 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
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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
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