                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        April 26, 2007
                            FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                         Clerk of Court

    JAHAD M UQARRAB ALI,

                Plaintiff-Appellant,

    v.                                                    No. 06-1317
                                                (D.C. No. 05-CV -2610-PSF-CB S)
    TER RY REEV ES; C /O PO N CETTA;                       (D . Colo.)
    C/O HENDERSON; GARY G OLDER,
    W arden,

                Defendants-Appellees.



                             OR D ER AND JUDGM ENT *


Before BR ISC OE, SE YM OU R, and A ND ER SO N, Circuit Judges.




         Jahad M uqarrab Ali, proceeding pro se, appeals from the district court’s

dismissal of his 42 U.S.C. § 1983 complaint pursuant to Fed. R. Civ. P. 12(b)(6).

W e have jurisdiction under 28 U.S.C. § 1291 and affirm.




*
       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)(2); 10th Cir. R. 34.1(G). 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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      M r. Ali is currently incarcerated with the Colorado Department of

Corrections (CDOC) in Sterling, Colorado. He filed a § 1983 action against the

defendants, all of whom are CDOC employees, alleging defendants Poncetta and

Henderson removed some letters and photos from his cell as part of an

investigation of a former CDOC employee. He asserted that his due process

rights were violated because his personal property was taken without a hearing.

Defendants filed a motion to dismiss, arguing in part that M r. Ali’s complaint

failed to state a claim for relief because he had an adequate post-deprivation

remedy for the removal of his property in the form of a state law claim for

damages. M r. Ali did not respond to this argument; instead, he argued that he had

exhausted his administrative remedies, but that the grievance process had failed.

      The magistrate judge issued a recommendation that the motion to dismiss

be granted. He characterized the removal of M r. Ali’s property as a “random and

unauthorized” deprivation of property as opposed to a deprivation “according to

some established state policy, procedure, or custom.” R., Doc. 44 at 3 (quotations

omitted). The magistrate judge noted that in these circumstances, the court must

focus its analysis on the post-deprivation process because “‘in most cases, it is

not only impracticable, but impossible, to provide a meaningful hearing before the

deprivation.’” Id. (quoting Parratt v. Taylor, 451 U.S. 527, 541 (1981),

overruled on other grounds by Daniels v. W illiams, 474 U.S. 327 (1986)).

He explained that “[e]ven intentional deprivations of property do not constitute

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a Fourteenth A mendment violation if adequate state post-deprivation remedies are

available.” Id. (citing Hudson v. Palmer, 468 U.S. 517, 533-36 (1984); Smith v.

Colo. Dep’t of Corr., 23 F.3d 339, 340 (10th Cir. 1994); Durre v. Dempsey,

869 F.2d 543, 545-48 (10th Cir. 1989)). Finally, he noted that “[w]hen property

is w rongfully taken by a state official, Colorado law provides an adequate

post-deprivation remedy at Colo. Rev. Stat. § 24-10-106.” Id. Because M r. Ali

had not alleged that he was unable to follow the state claim procedure, the

magistrate judge determined that he had failed to state a claim for a violation of

his due process rights. Id. at 3-4.

      M r. Ali filed an objection to the magistrate judge’s recommendation,

arguing in part that “[t]he law does not require that a prisoner file a deprivation

claim in the state court prior to filing such a claim in the federal court.

Such requirements would more likely than not prove to be both futile and

expensive . . . .” Id., Doc. 45 at 5. M r. Ali also asserted that he was required

only to exhaust his administrative remedies and that he had done so. Id. After

reviewing M r. Ali’s objection, the district court accepted and adopted the

recommendation of the magistrate judge and granted the defendant’s motion to

dismiss.

      M r. Ali filed a notice of appeal and a motion for leave to proceed on appeal

without prepayment of fees pursuant to 28 U.S.C. § 1915. He stated that his

issues for appeal were: “(1) W hether M r. Ali has an unexhausted remedy under

                                           -3-
section 24-10-106(1)(b) Colorado Revised Statutes” and “(2) W hether the PLRA

of 1995 requires a prisoner to proceed beyond the available administrative

remedies and into the state court before he becomes eligible to proceed under

42 U.S.C. Section 1983.” R., Doc. 49 at 1. The magistrate judge denied his

motion and found, pursuant to 28 U.S.C. § 1915(a)(3), that his appeal was not

taken in good faith because M r. Ali had “not shown the existence of a reasoned,

nonfrivolous argument on the law and facts in support of the issues raised on

appeal.” Id., Doc. 52 at 1.

      In this court, M r. Ali filed a motion for leave to proceed without

prepayment of costs or fees and an opening brief. On appeal, M r. Ali abandoned

the arguments that he had previously made before the district court. Instead, he

argued for the first time that although Colo. Rev. Stat. § 24-10-106(1)(b) provided

a state remedy, the remedy was no longer available because of the 1994 addition

of subsection (1.5), which he asserted denies redress to prisoners by granting

immunity to corrections facilities and their employees. Aplt. Br. at 2A-2B.

      Generally, we do not consider an argument raised for the first time on

appeal when it clearly could have been raised in the district court. In this case,

however, we note that the magistrate judge correctly stated Colorado law, but

cited to the incorrect statutory provision. M r. Ali sued individual employees of

the Colorado Department of Corrections. The provision cited by the magistrate

judge applies to public entities, see Colo. Rev. Stat. § 24-10-106, and the addition

                                          -4-
of subsection (1.5) does appear to limit the waiver of immunity for a correctional

facility when a suit is brought by a plaintiff who has been convicted of a crime

and is incarcerated in the correctional facility. There is a separate statutory

provision, however, that does waive immunity for suits against state employees,

see id. § 24-10-118. Because of this, M r. Ali did have an adequate

post-deprivation remedy and could have filed a claim against the defendants in

this case using the claim procedure outlined in § 24-10-109. M r. Ali failed to

follow this claim procedure and failed to allege any reason why he was unable to

do so. Because of this, the district court’s dismissal was proper.

      In reviewing M r. Ali’s motion for leave to proceed without prepayment of

costs or fees, we must consider whether “he has demonstrated a financial inability

to pay the required fees and the existence of a reasoned, nonfrivolous argument

on the law and facts in support of the issues raised on appeal.” M cIntosh v.

United States Parole Comm’n, 115 F.3d 809, 812-13 (10th Cir. 1997) (quotation

omitted). The district court denied M r. Ali’s initial motion and concluded that

M r. Ali had not shown the existence of a reasoned, nonfrivolous argument, but it

did not have the opportunity to consider the argument that was presented to this

court. W e conclude that M r. A li’s appellate argument is not frivolous and we

grant his motion.




                                          -5-
      The judgment of the district court is A FFIRM ED. M r. Ali’s motion to

proceed without prepayment of costs and fees is GRANTED. M r. Ali is reminded

that he must continue to make his partial fee payments until the fee is paid in full.


                                                     Entered for the Court



                                                     Stephen H. Anderson
                                                     Circuit Judge




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