                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                               DEC 7 2004
                                     TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                    Clerk

 CORTEZ DARNELL WALTERS,

           Plaintiff-Appellant,
 v.                                                          No. 04-6067
 CORRECTIONS CORPORATION OF                            (D.C. No. CV-03-422-R)
 AMERICA; STEER, Captain, SEAN                            (W.D. Oklahoma)
 SWEEDEN; DARREN SWENSON,

           Defendants-Appellees,

 and

 MELINDA GUILFOYLE,

           Defendant.




                                  ORDER AND JUDGMENT*


Before TACHA, Chief Judge, BRISCOE, and HARTZ, Circuit Judges.


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

unanimously that oral argument would not materially assist the determination of this



       *
        This order and judgment is not binding precedent, except under the doctrines of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.
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered

submitted without oral argument.

       Plaintiff Cortez Darnell Walters, a pro se state prisoner, appeals the district court’s

dismissal of his 42 U.S.C. § 1983 claims pursuant to 42 U.S.C. § 1997e(c)(2) and 28

U.S.C. § 1915(e)(2)(B)(II) for failure to state a claim on which relief can be granted, and

dismissal without prejudice of his supplemental state law tort claim against defendant

Sean Sweeden. We affirm in part, reverse in part, and remand.

       Construing his submissions liberally, Walters contends the district court erred (1)

in dismissing his claim for deprivation of property (a $150 check) by Corrections

Corporation of America (CCA), which he alleged resulted from its policies and from

inadequate training of its mail room employees; (2) in dismissing his claim for being

deprived of access to state administrative grievance procedures; (3) in dismissing his

claim against defendant Daren Swenson for failure to adequately supervise and train mail

room employees, resulting in deprivation of his property rights; (4) in dismissing his

claim that Sweeden violated his rights under the Eighth Amendment; (5) in dismissing his

claims against Swenson and Steer for failure to discipline and supervise Sweeden to

prevent the alleged Eighth Amendment violation.

       This court reviews de novo dismissals under § 1915(e)(2)(B)(ii). Perkins v.

Kansas Dep’t of Corrections, 165 F.3d 803, 806 (10th Cir. 1999). Dismissals under

§ 1997e(c)(2) are also reviewed de novo. Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th


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Cir. 1998).

                                     Writ of certiorari

       Although it is unclear what relief Walters seeks from this court in his petition for

writ of certiorari, it appears he is asking us to not rule on his pending appeal, but rather

send his case directly to the United States Supreme Court. We must deny Walters request

for the simple reason that it is the Supreme Court, and not any lower court, that decides

whether it will take a case through the granting of a writ of certiorari.

                   Access to state administrative grievance procedure

       Walters alleges various defendants deprived him of access to state grievance

procedures, in violation of the Constitution. Although he references problems with the

grievance procedures in his opening brief, it is unclear whether he actually is appealing

the dismissal of those claims. Construing his brief liberally, we will consider the claims.

“When the claim underlying the administrative grievance involves a constitutional right,

the prisoner’s right to petition the government for redress is the right of access to the

courts, which is not compromised by the prison’s refusal to entertain his grievance.”

Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991). As is evident from the file before us,

Walters has not been deprived of access to the courts. Accordingly, any alleged denial of

access to state administrative grievance procedures has not resulted in a violation of his

constitutional rights.

                          CCA policy deprived Walters of $150


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       Walters alleged the CCA policies and procedures for mail handling deprived him

of $150. He contends CCA’s policies were deliberately indifferent to the proper handling

of letters containing checks sent to prisoners where the return address and check were

from the clerk of court rather than from an individual. He argues a check sent in such a

manner should have been credited to his account, or at least information regarding the

mail should have been logged/recorded before it was mailed elsewhere, including

information regarding where the mail was sent. Walters asserts that as a result of CCA’s

mail handling policy, the $150 returned to him by the clerk of court was never credited to

his account and was sent elsewhere without any record of where it was sent. He alleges

that CCA’s policies and inadequate training and supervision of its personnel deprived him

of his property.

       The magistrate judge and, in turn, the district court, relied on Hudson v. Palmer,

468 U.S. 517 (1984), and Parratt v. Taylor, 451 U.S. 527 (1981), to dismiss this claim.

The magistrate judge noted the Supreme Court has “held that neither negligent nor

intentional random or unauthorized deprivations of property under color of state law are

actionable where a plaintiff has an adequate state post-deprivation remedy.” Report &

Recommendation at 4. The magistrate judge recommended that “[i]n light of the

adequate post-deprivation state remedies, Plaintiff’s claim for damages based on

deprivation of property fails to state a viable claim under Section 1983.” Id. at 5. The

district court adopted the magistrate judge’s findings and conclusions.


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       We disagree with the district court’s reliance on Hudson and Parratt to dismiss

Walters’ claims arising out of the CCA mail handling procedures. “Both Parratt and

Hudson deal with random and unauthorized deprivations of property rather than

deprivations according to some established state policy, procedure, or custom.” Gillihan

v. Shillinger, 872 F.2d 935, 939 (10th Cir. 1989). In Gillihan, this court concluded where

“the deprivation is not random and unauthorized, but is pursuant to an affirmatively

established or de facto policy, procedure, or custom, the state has the power to control the

deprivation.” Id. As a result, in cases where the property deprivation is not random and

unauthorized, “the availability of an adequate state post-deprivation remedy is irrelevant

and does not bar a § 1983 claim.” Id. at 940. See also Gonzales v. City of Castle Rock,

366 F.3d 1093, 1112 (10th Cir. 2004) (en anc) (cert. granted, 125 S. Ct. 417) (stating

“when the deprivation is caused by established state procedures, the existence of an

adequate remedy at state law does not extinguish a procedural due process claim”).

Because Walters contends the prison procedures themselves created the risk of his being

deprived of property and the ultimate loss of his property, the district court erred in

determining his claims were subject to dismissal.

                                    Eighth Amendment

       Walters also claimed that defendant Sweeden pushed him twice, violating his

Eighth Amendment rights. Walters alleged in his complaint that the sole purpose of this

application of force was to “cause fright and fear” and was inspired by Sweeden’s anger


                                              5
related to Walters reporting the names of employees he feared. Although Walters alleged

an improper state of mind, he did not allege he suffered any injury as a result of being

pushed.

       Not “every malevolent touch by a prison guard gives rise to a federal cause of

action. . . . Not every push or shove, even if it may later seem unnecessary in the peace of

a judge’s chambers, violates a prisoner’s constitutional rights.” Hudson v. McMillian,

503 U.S. 1, 9 (1992) (internal citations and quotations omitted). “The Eighth

Amendment’s prohibition . . . necessarily excludes from constitutional recognition de

minimis uses of physical force, provided that the use of force is not of a sort repugnant to

the conscience of mankind.” Id. at 9-10 (internal quotations omitted).

       Walters allegedly was pushed twice and stumbled, although there is no indication

that he hit the floor. In DeWalt v. Carter, 224 F.3d 607 (7th Cir. 2000), the Seventh

Circuit considered circumstances similar to this case, although the physical injury there

was more substantial.1 Officer Smith informed

       DeWalt that he was receiving the disciplinary report because he had filed a
       grievance against Officer Young and because correctional officers “stick
       together.” As Mr. DeWalt walked away, he told Officer Smith his actions
       were unprofessional, whereupon Officer Smith jumped up and shoved Mr.
       DeWalt toward the doorway and into the door frame. Mr. DeWalt suffered


       1
         Although Walters mentions the possibility of amending his complaint, he has not
suggested either in his objections to the magistrate judge’s report and recommendation or
before this court that such amendment would include adding some type of physical injury.
Rather, he repeatedly has insisted a physical injury is not necessary to show an Eighth
Amendment violation.

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       bruising on his back where he hit the door frame; the prison medical staff,
       however, did not note any visible injury and did not order x-rays.

Id. at 610-11. The court concluded that “Officer Smith’s simple act of shoving Mr.

DeWalt qualifies as the kind of de minimis use of force that does not constitute cruel and

unusual punishment.” Id. at 620.

       As was the case in DeWalt, Sweeden’s twice pushing Walters constitutes a “de

minimis use[] of physical force” that “is not of a sort repugnant to the conscience of

mankind.” See Hudson, 503 U.S. at 10 (internal quotations omitted). Accordingly,

Sweeden’s alleged actions were not cruel and unusual under the Eighth Amendment.

       Walters also raises claims against Steer and Swenson for improper supervision of

Sweeden, failure to discipline Sweeden, and failure to protect him from Sweeden.

However, “[a] supervisor is not liable under § 1983 unless an ‘affirmative link’ exists

between the constitutional deprivation and . . . the supervisor’s personal participation, his

[or her] exercise of control or direction, or his [or her] failure to supervise.” Butler v.

City of Norman, 992 F.2d 1053, 1055 (10th Cir. 1993). Because the assault and battery

that Walters allegedly suffered does not rise to the level of a constitutional deprivation,

Steer and Swenson cannot be held liable under § 1983.

       The district court’s dismissal of Walters’ claims related to the alleged deprivation

of property without due process as frivolous was erroneous and we REVERSE and

REMAND for further proceedings with regard to those claims. As regards his other

claims, we AFFIRM. Walters’ motion to proceed on appeal without prepayment of fees

                                               7
is GRANTED. Walters is reminded of his obligation to continue making partial payments

toward the balance of those fees until they are paid in full. Walters’ motion for a 15-day

extension of time to make a partial payment toward fees is GRANTED.

                                                 Entered for the Court

                                                 Mary Beck Briscoe
                                                 Circuit Judge




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