                                                                          FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                      UNITED STATES COURT OF APPEALS                   April 9, 2008
                                                                 Elisabeth A. Shumaker
                                   TENTH CIRCUIT                     Clerk of Court



 DAVID S. THOMAS,

          Plaintiff - Appellant,

 v.

 NEW MEXICO CORRECTIONS                                  No. 06-2224
 DEPARTMENT; JOE ROMERO,
 Warden; JAMES                                (D.C. No. CIV-06-0514 MV/LCS)
 LECHALT, Grievance Officer;                              (D. N. M.)
 CHARLIE MARTINEZ, Correctional
 Officer/Property Officer; ERMA
 SEDILLO, Deputy Secretary of
 Operations,


          Defendants-Appellees.




                              ORDER AND JUDGMENT *




Before HENRY, Chief Judge, TYMKOVICH, and HOLMES, Circuit Judges.




      *
          This Order and Judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1. After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
      David Savoy Thomas, a New Mexico prisoner appearing pro se, appeals the

district court’s dismissal of his 42 U.S.C. § 1983 claim. He also seeks leave to

proceed in forma pauperis (IFP) on this appeal. We exercise jurisdiction under 28

U.S.C. § 1291. Reviewing Mr. Thomas’s filings liberally, 1 we conclude that Mr.

Thomas cannot prevail on the facts he has alleged. We AFFIRM the district

court’s dismissal of his claim and GRANT Mr. Thomas IFP status.

                               I. BACKGROUND

      We draw the relevant facts from the averments of Mr. Thomas’s complaint.

On June 4, 2004, Mr. Thomas was released from federal prison into the custody

of the State of New Mexico. During intake proceedings at the Central New

Mexico Corrections Facility (“CNMCF”), Mr. Thomas repeatedly requested to

mail his personal property home at his own expense. A CNMCF property officer,

Officer Martinez, responded to Mr. Thomas’s requests by informing him that the

institution did not allow inmates to mail their personal property home, and Mr.

Thomas could donate his property or it would be destroyed. Officer Martinez

then asked Mr. Thomas to sign a property disposition sheet. Mr. Thomas refused

to sign the sheet and claimed that it was inaccurate. Mr. Thomas was later given



      1
              Because Mr. Thomas is proceeding pro se, we review his pleadings
and filings liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Howard
v. U. S. Bureau of Prisons, 487 F.3d 808, 815 (10th Cir. 2007).

                                         2
a CNMCF inmate handbook. Upon reading the handbook, he learned Officer

Martinez had violated CNMCF policy by refusing to mail his personal property.

      Mr. Thomas sought to informally settle the issue with CNMCF officials.

When that failed to resolve the matter, he filed a grievance on June 21, 2004. A

month later, after receiving no response on his initial grievance, he filed a second

grievance. On July 27, 2004, Mr. Thomas was told that his grievance was denied

based on the property disposition sheet. Mr. Thomas alleges that his signature

had been forged on this sheet. Mr. Thomas appealed his grievance, and his appeal

was eventually denied. Mr. Thomas then filed a claim under the New Mexico

Tort Claims Act, which was eventually dismissed.

      Mr. Thomas then filed this § 1983 action in the New Mexico District Court.

He made three claims: he was deprived of his property in a manner unlike

similarly situated prisoners, creating an equal protection claim; he was deprived

of his property without due process; and he was subjected to cruel and unusual

punishment. He also accused Officer Martinez of committing fraud under New

Mexico law by forging his signature on the property disposition sheet. Under 28

U.S.C. § 1915(e)(2) and Fed. R. Civ. P. 12(b)(6), the district court sua sponte

dismissed his complaint. Mr. Thomas then appealed to this court. 2

      2
             Although Mr. Thomas’s argument in his appeal focuses on the due
process issue, the relief he requests is a remand so that his entire case can
proceed. And, in his argument for review, he mentions the other issues raised
                                                                        (continued...)

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                                 II. DISCUSSION

       Dismissals pursuant to Fed. R. Civ. P. 12(b)(6) and section 1915(e)(2) are

reviewed de novo. Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 806 (10th Cir.

1999). For purposes of our review of the dismissal for failure to state a claim, we

presume that Mr. Thomas’s complaint allegations are true and construe them in

the light most favorable to him. Gillihan v. Shillinger, 872 F.2d 935, 938 (10th

Cir. 1989) (per curiam). However, “we are not bound by conclusory allegations,

unwarranted inferences, or legal conclusions.” Hackford v. Babbitt, 14 F.3d 1457,

1465 (10th Cir. 1994). Because Mr. Thomas is a pro se litigant, we also construe

his pleadings liberally and hold him to less stringent pleading standards than

those for pleadings drafted by lawyers. Gillihan, 872 F.2d at 938. Dismissal of

his pro se complaint is proper only if it is obvious that he cannot prevail on the

facts alleged and it would be futile to allow him to amend. Perkins, 165 F.3d at

806.

       Regarding Mr. Thomas’s due process claim, there is no deprivation of

property unless the State does not offer an adequate postdeprivation remedy. Mr.

Thomas acknowledges that Officer Martinez’s actions were in violation of

CNMCF policy. This makes Officer Martinez’s actions the sort of unauthorized



       2
       (...continued)
below. Accordingly, construing his filings liberally, we consider his appeal to
challenge all issues decided by the district court.

                                          4
or random actions governed by Hudson v. Palmer, 468 U.S. 517 (1984), and

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

Williams, 474 U.S. 327 (1986). These cases hold that such a deprivation of

property is not a due process violation if there is a meaningful postdeprivation

remedy available. Hudson, 468 U.S. at 533; Parratt, 451 U.S. at 543-44.

      Mr. Thomas alleges that the state relief is “bogus in nature” and suggests

that the officials are immune from liability. Civil Rights Complaint, dated June

14, 2006, § B (Nature of the Case), at ¶ 22. However, the New Mexico State Tort

Claims Act’s grant of immunity does not apply to liability for a violation of

property rights or the deprivation of any federal constitutional rights caused by

“law enforcement officers while acting within the scope of their duties.” N.M.

Stat. Ann. § 41-4-12. Under New Mexico law, an employee of a local jail is

considered a law enforcement officer for purposes of the Tort Claims Act. N.M.

Stat. Ann. § 33-3-28(A). Construing Mr. Thomas’s filing liberally, we can find no

reason to consider the New Mexico remedy inadequate. Thus, an adequate

postdeprivation remedy is available and there was no due process violation.

      Regarding Mr. Thomas’s equal protection claim, Mr. Thomas’s conclusory

allegations are not enough to state a claim. Mr. Thomas must allege that he was

treated differently from similarly situated individuals. See City of Cleburne v.

Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Mr. Thomas only states that his



                                          5
property was disposed of unlike similarly situated inmates and offers no

additional information beyond that. This conclusory statement alone is

insufficient to demonstrate that similarly situated persons were treated differently.

See Jennings v. City of Stillwater, 383 F.3d 1199, 1209-10, 1213-14 (10th Cir.

2004).

         Regarding Mr. Thomas’s claim that he was subjected to cruel and unusual

punishment, Mr. Thomas’s allegations are not sufficiently grave to rise to the

level of an Eighth Amendment violation. When inmates are deprived “of the

minimal civilized measure of life’s necessities” as measured under a

contemporary standard of decency, there may be an Eighth Amendment violation.

Rhodes v. Chapman, 452 U.S. 337, 347 (1981). However, Mr. Thomas’s claim

that he was deprived of his personal belongings does not rise to this level. Mr.

Thomas alleges neither that he was deprived of essential human needs nor that

prison officials acted with deliberate indifference to inmate health or safety, and

thus, he does not state a claim for cruel and unusual punishment. See Perkins, 165

F.3d at 809 (“An Eighth Amendment claim has both an objective

component—whether the deprivation is sufficiently serious—and a subjective

component—whether the official acted with a sufficiently culpable state of

mind”); Gillihan, 872 F.2d at 941 (“Plaintiff, here, did not allege a deprivation of

essential human needs. Rather, he alleged that he was deprived of ‘what little

luxury’ he had. While such a deprivation may be ‘restrictive and even harsh,’ it

                                          6
did not amount to the infliction of cruel and unusual punishment” (internal

citation omitted)).

      The district court also addressed a state fraud claim that was suggested by

Mr. Thomas’s pleadings. Because all federal claims had already been dismissed,

the district court dismissed Mr. Thomas’s state fraud claim without prejudice.

This was an appropriate means of addressing the fraud claim and the district court

did not err. See Bauchman ex rel. Bauchman v. W. High Sch., 132 F.3d 542, 549

(10th Cir. 1997) (“If federal claims are dismissed before trial, leaving only issues

of state law, the federal court should decline the exercise of jurisdiction by

dismissing the case without prejudice.” (internal quotation marks and citation

omitted)).

      For the reasons stated above, the district court is AFFIRMED. We also

GRANT Mr. Thomas’s request to proceed in forma pauperis. He is reminded of

his obligation to continue making partial payments until the entire fee for this

appeal is paid in full.




                                       ENTERED FOR THE COURT




                                       Jerome A. Holmes
                                       Circuit Judge


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