                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 October 22, 2012
                        UNITED STATES COURT OF APPEALS
                                                     Elisabeth A. Shumaker
                                                                    Clerk of Court
                                    TENTH CIRCUIT


 CHARLES D. FRIEDMAN,

           Plaintiff - Appellant,
                                                        No. 11-4192
 v.                                             (D.C. No. 2:09-CV-00227-TC)
                                                          (D. Utah)
 JOEY BARAJAS, individually and in
 his official capacity as Deputy United
 States Marshal,

           Defendant - Appellee,

 and

 UNITED STATES OF AMERICA,

           Defendant.


                               ORDER AND JUDGMENT *


Before KELLY, TYMKOVICH, and GORSUCH, 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        This order and judgment is not binding precedent, except under the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 cause is therefore ordered submitted without oral argument.
      Plaintiff-Appellant Charles Friedman, a federal inmate proceeding pro se,

appeals from the district court’s order granting summary judgment in favor of

Defendant-Appellee, a deputy U.S. marshal. Friedman v. United States, No.

2:09–CV–227 TC, 2011 WL 5118300 (D. Utah Oct. 27, 2011). The parties are

familiar with the facts and we need not restate them here. On appeal, Mr.

Friedman argues that the district court erred in dismissing his Fifth Amendment

due process claim and First and Fifth Amendment court access claim, all arising

from the loss of his property which occurred incident to a prison transfer.


      We affirm the district court’s judgment on the grounds that the summary

judgment evidence, even in the light most favorable to Mr. Friedman, could not

support a finding that the deputy marshal intentionally deprived him of his

property. 1 Nor could it support a judgment that Mr. Friedman was denied access

to the courts based upon the loss of his legal materials, as he cannot prove actual

injury or substantial prejudice in pursuing contemplated legal action. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252–56 (1986).




      1
         The district court also concluded that Mr. Friedman has an adequate post-
deprivation remedy under the Federal Tort Claims Act. Friedman, 2011 WL
5118300, at *6. As the government recognizes, the FTCA does not provide an
adequate remedy. Aplee. Br. at 14 (citing Ali v. Fed. Bureau of Prisons, 552 U.S.
214, 217–19, 227–28 (2008) (holding that the FTCA excepts from its waiver of
the federal government’s sovereign immunity any property claim against law
enforcement)). In light of our disposition, we need not pursue this theory further.

                                        -2-
      We take as true, as we must, that the deputy marshal, upon repeatedly being

asked for an itemized property receipt by Mr. Friedman while he was being

transported to the Salt Lake County jail, stated “How about I just dump this crap

in the trash and we won’t have to worry about it?” 1 R. 381–82. Further, we

accept that the deputy marshal asked Mr. Friedman “So, what’s your beef with

Aramark and the jail here?” and Mr. Friedman explained his theory that he was

being fed non-kosher food. Id. at 380. We also take as true that, weeks later, the

deputy marshal returned two volumes of the Sentencing Guidelines to Mr.

Friedman’s lawyer. Id. at 389. Because it is uncontroverted, we assume that Mr.

Friedman’s property, including his papers, was delivered to the U.S. Marshals

Service (“USMS”) office where it was stored and apparently went missing. Id. at

69 (Prisoner Property Sheet); 212–13 (Barajas); 231–32 (Charters). No

significantly probative evidence suggests that the deputy marshal (who had no

further responsibility for Mr. Friedman’s property) personally participated in

intentionally destroying his legal papers. 2 See Daniels v. Williams, 474 U.S. 327,

328 (1986); Simkins v. Bruce, 406 F.3d 1239, 1242 (10th Cir. 2005). Mr.

Friedman admits, as he must, that he simply was not present when the material

went missing. 1 R. 285. That the procedures concerning storage and disposal of




      2
        Mr. Friedman, with the assistance of the USMS, was able to replace 14 of
the 18 categories of lost property. See 1 R. 288, 292–93.

                                        -3-
personal property may have been wanting does not move this case beyond

negligence.


      Insofar as the access to the courts claim, we must disagree with the district

court that Mr. Friedman has shown prejudice. See Lewis v. Casey, 518 U.S. 343,

351 (1996). While Mr. Friedman certainly need not show that he would prevail,

we are at a loss as to how Mr. Friedman’s potential lawsuit was actually hindered

as he alleged, 1 R. 19. See Gee v. Pacheco, 627 F.3d 1178, 1191 (10th Cir.

2010); Peterson v. Shanks, 149 F.3d 1140, 1145 (10th Cir. 1998). As set out in

his declaration, Mr. Friedman knows the facts of his claims (as did his lawyer, 1

R. 388) and that certainly would be sufficient to file a lawsuit and then seek

discovery. See id. at 383–84. The fact that Mr. Friedman might not be able to

substantiate all of his claims at the outset, id. at 384, due to the loss of his legal

materials misunderstands the legal process. Moreover, claims of this nature have

been frequently litigated and nothing suggests that Mr. Friedman or his counsel

could not re-access such cases. Finally, as discussed above, evidence of

intentional and deliberate conduct by this defendant (required to state a denial of

access to the courts claim) is wanting. See Bruce, 406 F.3d at 1242.




                                           -4-
       AFFIRMED. We GRANT Mr. Friedman’s motion to proceed IFP, but we

remind him that he is obligated to make partial payments until the filing fee is

paid in full.


                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




                                         -5-
