                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           NOV 7 2003
                                    TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 LEO SCOTT,

          Plaintiff - Appellant,
 v.

 CASE MANAGER OWENS (SCF);
 SGT. M. LEIBA (SCF Property);
 NICOLE WILSON (SCF Medical);
 C/O STERGEN (SCF Property);
 VICKIE BUTTS (Admin Asst. III);
 R. WRIGHT, Case Manager (CCF);
                                                        No. 03-1309
 L. WATKINS, Case Manager (CCF);
                                                     (D.C. No. 03-Z-960)
 SGT. MORRIS (CCF Property);
                                                          (D. Colo.)
 J. SCHECK (SCF Inmate Accounts);
 STAN RONI (CCF Inmate Accounts);
 CO VIOLA (Offender Mail); LT.
 STAGG (SCF Mail Room Supervisor);
 LT. CHRIS BARR (CCF Intelligence
 Coordinator); THOMAS E. KOLLE
 (Custodian of Offender Records); and
 MAJ. L. WAIDE (SCF Administrative
 Manager),

          Defendants - Appellees.


                             ORDER AND JUDGMENT *


      *
        After examining appellant’s brief and the 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) and 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Order and Judgment is not binding precedent, except under the doctrines of law of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. The court generally disfavors the
                                                                       (continued...)
Before EBEL, HENRY and HARTZ, Circuit Judges.


      Plaintiff Leo Scott, a prisoner in the custody of the Colorado Department of

Corrections at the Sterling Correctional Facility, appeals pro se from the district

court’s dismissal of his amended complaint as legally frivolous pursuant to 28

U.S.C. §1915(e)(2)(B)(i). Scott brought this action under 42 U.S.C. §1983,

alleging that prison officials 1) did not allow him to use one-half of his inmate

pay to purchase hygiene products and postage stamps from the prison canteen, 2)

denied him indigent status, and 3) destroyed some of his personal property after

he attempted to mail it out of the prison but refused to pay for postage. We agree

that Scott’s claims are frivolous and AFFIRM. 1


      *
        (...continued)
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
      1
         Scott also complained before the district court that he was denied access
to certain medical records and that prison officials did not permit him to refer to
himself as “Reverend Leo Scott.” He does not raise these arguments anywhere in
his brief to this Court, and therefore we do not address these issues. See Pino v.
Higgs, 75 F.3d 1461, 1463 (10th Cir. 1996) (appellant waives issues not argued in
its appellate brief, even if raised in a preliminary docketing statement).
       Because Scott brings this action pro se, we construe his pleadings liberally
and hold them to a less stringent standard than formal pleadings drafted by
lawyers. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Yet “an
appellant’s pro se status does not excuse the obligation of any litigant to comply
with the fundamental requirements of the Federal Rules of Civil and Appellate
Procedure.” Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994).

                                        -2-
                                    Background

      Scott’s complaints center on his alleged inability to make certain purchases

because he did not have enough money in his inmate account. In particular, he

argues that he lacked funds to pay for hygiene products, stamps, and other items

from the prison canteen. In addressing these grievances we must first explain

briefly the inmate banking system used by the Colorado Department of

Corrections (DOC) and the status of Scott’s account.

      Under DOC’s Administrative Regulations, inmate expenditures are

classified into two major categories: elective withdrawals initiated by the prisoner

(such as canteen purchases, postage, and copy charges) and non-elective

withdrawals (such as fines and payments for medical services). DOC Reg. 200-02

at III(F), III(G), IV(B). A prisoner may make non-elective withdrawals even if

doing so results in a negative balance on his or her inmate account. Id. at IV(B).

Likewise, offenders may generally send out and be charged for legal mail even if

it results in a negative account balance. DOC Reg. 300-38 at III(E). In contrast,

a prisoner may make elective withdrawals only if he has sufficient funds available

to cover the purchase. DOC Reg. 200-02 at IV(A).

      Yet in some instances, a prisoner may have funds “available” for elective

withdrawals even though his or her total account balance is below zero. When a

prisoner has a negative total account balance and receives deposits to his or her


                                        -3-
account – such as inmate pay – half of the deposit will generally be used to offset

the prisoner’s negative balance and the other half will generally be available for

expenditure. Id. at IV(E)(3). Furthermore, indigent offenders may be eligible to

receive basic hygiene items and certain postage assistance free of charge. DOC

Reg. 850-14 at IV(C)(1)-(2). Prisoners are considered “indigent” for purposes of

these regulations if they meet certain criteria, including that “the offender has not

received offender pay for the preceding 30 days.” Id. at IV(B)(1).

      Although Scott’s total account balance has long been below zero, the record

shows that he has received monthly inmate pay. Half of that pay has been

credited to his available balance, and Scott could have used this money for

various elective withdrawals, such as buying hygiene products and other items

from the canteen, or mailing property out of the prison. To do so, however, he

had to make those withdrawals before his account was charged for other expenses.

      According to Scott’s account statement, he did on several occasions make

canteen purchases before his available balance was exhausted by other expenses;

in other months he instead allowed his available balance to be used up by

medical, copying and postage debits.

                                Scott’s § 1983 Claims

      Scott does not articulate what federal legal rights he asserts prison officials

have violated. Presumably, he intends to argue that his inability to buy certain


                                         -4-
goods and services constitutes cruel and unusual punishment in violation of the

Eighth Amendment and/or that he has been deprived of appropriate procedural

safeguards with respect to his property in violation of the Due Process Clause of

the Fourteenth Amendment. We can find no merit in either of these arguments.

      We initially observe that this is not the first time Scott has complained in

this Court of his inability to use half of his inmate pay to buy hygiene products

and other supplies from the prison canteen. See Scott v. Inmate Accounts – DOC,

75 Fed. Appx. 708, 709-10 (10th Cir. 2003). In Scott v. Inmate Accounts, the

defendants included Case Manager Watkins, Vickie Butts and Stan Roni – all

defendants in this appeal – as well as “DOC/CCF Staff.” We construed Scott’s

complaint in that action as an Eighth Amendment challenge, and held that his

claim was frivolous. Id. at 709-10. In the present case, all of the defendants are

DOC staff. To the extent Scott merely repeats his argument that he was prevented

from spending half of his pay in the canteen, his claim is barred by res judicata.

See Rivet v. Regions Bank of La., 522 U.S. 470, 476 (1998) (noting that a “final

judgment on the merits of an action precludes the parties or their privies from

relitigating issues that were or could have been raised in that action”).

      More fundamentally, Scott has alleged nothing that suggests he has been

subjected to inhumane conditions of confinement. See Penrod v. Zavaras, 94 F.3d

1399, 1405 (10th Cir. 1996). “A prison official may be held liable under the


                                         -5-
Eighth Amendment for denying humane conditions of confinement only if he

knows that inmates face a substantial risk of serious harm and disregards that risk

by failing to take reasonable measures to abate it.” Id.; see also Farmer v.

Brennan, 511 U.S. 825, 834 (1994) (an Eighth Amendment violation occurs if an

inmate is denied “the minimal civilized measure of life’s necessities” and prison

officials acted with deliberate indifference). Although a denial of basic hygiene

items might meet this standard under extreme conditions, Scott has not come

close to alleging a substantial risk of serious harm in this case. Cf. Penrod, 94

F.3d at 1406. In fact, Scott has not alleged any injury whatsoever, and he was

unable to buy hygiene supplies only because he neglected to pay for them when he

had available funds in his inmate account. For these same reasons, denying Scott

indigent status pursuant to DOC Reg. 850-14 IV(B)(1) because he received

monthly inmate pay – thus requiring him to purchase his own hygiene supplies –

does not constitute cruel and unusual punishment.

      We also reject Scott’s procedural due process claim. It appears from his

complaint that Scott contends that the defendants were not authorized to destroy

his property. This assertion states no constitutional claim because Scott has not

alleged that he lacks a meaningful post-deprivation remedy, such as a state law

tort action. See Hudson v. Palmer, 468 U.S. 517, 533 (1984); Winters v. Bd. of

County Comm’rs, 4 F.3d 848, 857 (10th Cir. 1993). “The deprivation of


                                         -6-
procedural due process is not complete unless and until the state fails to provide

adequate constitutionally essential procedures.” Winters, 4 F.3d at 856. 2

                                     Conclusion

      For the foregoing reasons, we hold that Scott has failed to state an arguable

claim for relief, and that this action is therefore frivolous. Cf. Hall, 935 F.2d. at

1109. Accordingly, the district court correctly dismissed Scott’s action pursuant

to 28 U.S.C. §1915(e)(2)(B)(i). 3 Furthermore, because Scott has failed to present

      2
        An adequate post-deprivation remedy relieves due process concerns only
for unauthorized acts, not for compliance with established state policy. Winters,
4 F.3d at 857. Even if we construed Scott’s complaint as a challenge to
established DOC procedures, his action fails because he has not shown that
DOC’s policies governing inmate property deprive him of due process.
       Under DOC regulations, prison officials may dispose of property that is
determined to be contraband, including items over the allowable property limit.
DOC Regs. 300-06(III)(C), 300-06(IV)(R), 850-06(IV)(J). If an inmate can prove
ownership and the item does not pose a security risk, the inmate may mail it from
the prison at his or her own expense. DOC Reg. 300-06(IV)(R)(5)(c). Yet if the
inmate lacks available funds to mail the item out within 30 days of notice, the
item may be destroyed or in some cases donated to charity. Id.
       We have previously held that due process is satisfied when a prison
disposes of an inmate’s property after providing a meaningful opportunity for the
inmate to send it to someone outside the prison. Searcy v. Simmons, 299 F.3d
1220, 1229 (10th Cir. 2002). The DOC regulations provide Scott with such an
opportunity. As explained above, he could have used half of his inmate pay to
ship his property had he elected to do so before his available funds were used for
other expenditures. On this record, Scott has failed to point to any specific facts
suggesting that DOC property and inmate banking regulations denied him a
meaningful opportunity to mail out his property before it was destroyed. See
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (this court will
not supply additional factual allegations to round out a plaintiff’s complaint).
      3
          We note that on at least two prior occasions Scott has brought claims
                                                                      (continued...)

                                         -7-
any non-frivolous challenges to the district court’s order, we also agree with the

district court that this appeal was not taken in objective good faith. See

Coppedge v. United States, 369 U.S. 438, 445 (1962).

      We AFFIRM the district court’s dismissal of Scott’s claims, and DENY his

motion for leave to proceed on appeal without prepayment of costs or fees.



                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




      3
        (...continued)
while incarcerated that were dismissed as frivolous. See Scott v. Inmate
Accounts – DOC, 75 Fed. Appx. 708, 710 (10th Cir. 2003); Scott v. Crowley
County Corr. Facility, 2003 WL 22093917 at 1 (10th Cir. 2003). Accordingly, in
light of our judgment in this case, he may no longer bring a civil action or appeal
in forma pauperis under 28 U.S.C. § 1915 unless he is under imminent danger of
serious physical injury. See 28 U.S.C. § 1915(g).

                                         -8-
