	                                                                                          FILED	
                                                                               United	States	Court	of	Appeals	
                                            UNITED STATES COURT OF APPEALS             Tenth	Circuit	
                                                                                              	
                                                 FOR THE TENTH CIRCUIT              January	11,	2016	
                                             _________________________________                	
                                                                                  Elisabeth	A.	Shumaker	
                                                                                       Clerk	of	Court	
BRIAN STENGEL,

            Plaintiff - Appellant,

v.                                                                             No. 15-2183
                                                                   (D.C. No. 2:15-CV-00246-WJ-KBM)
NEW MEXICO CORRECTIONS                                                          (D. N.M.)
DEPARTMENT; GERMAN FRANCO;
BRIAN JOHNSON; MICHAEL
LAWTON; MARK SENA; SERGIO
SAPIEN; MICHELLE BOYER,

            Defendants - Appellees.
                            _________________________________

                                                    ORDER AND JUDGMENT*
                                                _________________________________

Before HARTZ, BALDOCK, and MORITZ, Circuit Judges.
                  _________________________________

             Proceeding pro se,1 Brian Stengel appeals the district court’s dismissal of his

complaint with prejudice. He also requests leave to proceed in forma pauperis (IFP) on


																																																								
             *
         After examining Stengel’s brief and the appellate record, this panel has
determined unanimously to honor Stengel’s request for a decision on the brief without
oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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. Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
       1
         Because Stengel proceeds pro se, we liberally construe his filings and apply a
more forgiving standard than we apply to attorney-drafted filings. Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). But we won’t act as his
advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).	


	
	


appeal. We grant Stengel’s motion to proceed IFP, but affirm the district court’s order of

dismissal.

                                      BACKGROUND

       While incarcerated at the Lea County Correctional Facility (LCCF) in New

Mexico,	Brian Stengel filed a pro se 42 U.S.C. § 1983 complaint. Stengel alleged that

LCCF employees violated his due process rights by illegally confiscating his guitar, and

violated his First Amendment rights by preventing him from utilizing LCCF’s grievance

process.

       The district court dismissed Stengel’s complaint with prejudice under 28 U.S.C.

§ 1915(e)(2) and Federal Rule of Civil Procedure 12(b)(6). First, the district court cited

Hudson v. Palmer, 468 U.S. 517 (1984), for the proposition that an “intentional

deprivation of property by a state employee does not constitute” a due process violation

so long as “a meaningful postdeprivation remedy for the loss is available.” Id. at 533.

Citing N.M. Stat. Ann. § 41-4-6(A) and N.M. Stat. Ann. § 41-4-12, the district court

concluded New Mexico law provides an adequate remedy for the alleged confiscation of

Stengel’s guitar. Thus, the district court dismissed his due process claim.

       The district court then turned to Stengel’s First Amendment claim. Citing Flick v.

Alba, 932 F.2d 728 (8th Cir. 1991), the court explained that “[w]hen [a] claim underlying

[an] 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.” Id. at 729. Because

Stengel’s act of filing his complaint belied any assertion that the defendants interfered

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with his access to the courts, the district court dismissed Stengel’s First Amendment

claim, too. Stengel appealed.

                                                           DISCUSSION

             Initially, we note that the district court didn’t explicitly state whether it dismissed

Stengel’s complaint as frivolous under § 1915(e)(2)(B)(i), or for failure to state a claim

under § 1915(e)(2)(B)(ii) and Rule 12(b)(6). But it did set forth the legal test for

dismissing a complaint for failure to state a claim. Because the district court never

referenced the legal test for frivolousness, we surmise the district court dismissed

Stengel’s claims under § 1915(e)(2)(B)(ii) and Rule 12(b)(6).2 Thus, our review is de

novo. See Cohen v. Longshore, 621 F.3d 1311, 1315 (10th Cir. 2010); Kay v. Bemis, 500

F.3d 1214, 1217 (10th Cir. 2007).

             Before turning to the merits, we also address Stengel’s assertion that the district

court erred by failing to liberally construe his pleadings and by holding him to the “same

standards” that apply to hired counsel. Aplt. Br. 13. See Hall, 935 F.2d at 1110. The

district court acknowledged its obligation to construe Stengel’s allegations liberally. And

it correctly stated the “standard” for dismissal was whether it was patently obvious that

(1) Stengel couldn’t prevail on the alleged facts, and (2) allowing him an opportunity to

amend would be futile.3 See Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 806 (10th Cir.

																																																								
             2
          This conclusion makes it unnecessary to address Stengel’s assertion that the
district court erred in dismissing his claims under § 1915(e)(2)(B)(i).
        3
          Elsewhere, Stengel argues the district court should have dismissed only if it
concluded Stengel could “prove no set of facts in support of his claim[s] which would
entitle him to relief.” Aplt. Br. 6-7 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957),
	
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1999) (setting forth test for sua sponte dismissal of pro se complaint for failure to state a

claim). Thus, we find no error.

             Likewise, we reject Stengel’s argument that the district court erred in using its

“legal knowledge and prowess against [him] to dismiss his case” instead of “attempt[ing]

to keep [him] in the court.” Aplt. Br. 16. Stengel’s argument overlooks the district court’s

duty to dismiss Stengel’s complaint if it failed to state a claim. See 28 U.S.C.

§ 1915(e)(2)(B)(ii). Moreover, we have explicitly warned district courts against assuming

the role of advocate for the pro se litigant. Hall, 935 F.2d at 1110.

             Emphasizing the facts alleged in his complaint, Stengel argues the district court

erred in dismissing his complaint for failure to state a claim.4 But the district court didn’t

dismiss Stengel’s claims because it found his factual allegations improbable, conclusory,

or lacking in specificity; it dismissed because it found his claims legally untenable.

             Stengel’s attempts to attack that legal conclusion fare no better. First, Stengel

asserts the district court erred in relying on Hudson in dismissing his due process claim

because, according to Stengel, LCCF’s deputy warden “authorized” the alleged

confiscation of Stengel’s guitar. Aplt. Br. 17.
																																																																																																																																																																																			
abrogated by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). The Supreme Court has
long-since “retired the Conley no-set-of-facts test.” Ashcroft v. Iqbal, 556 U.S. 662, 670
(2009).
       4
         At the outset, Stengel suggests the district court erred in proceeding without the
benefit of a Martinez report. See Martinez v. Aaron, 570 F.2d 317, 318-20 (10th Cir.
1978). We disagree. “This court’s precedent permitting the use of Martinez reports from
prison authorities does not somehow create a procedural entitlement on behalf of
prisoners seeking to avoid dismissal of deficient pleadings under Rule 12(b)(6).”
Christensen v. Big Horn Cty. Bd. of Cty. Comm’rs, 374 F. App’x 821, 825 (10th Cir.
2010) (unpublished).

                                                                                       4
	
	


       In Hudson, the Supreme Court reiterated that when property loss “is occasioned by

a random, unauthorized act by a state employee, rather than by an established state

procedure, the state cannot predict when the loss will occur,” thus rendering a

predeprivation hearing impracticable. 468 U.S. at 532 (emphasis added). Under such

circumstances, the Due Process Clause is satisfied so long as “a meaningful

postdeprivation remedy for the loss is available.” Id. at 533.

       Here, Stengel doesn’t suggest the alleged deprivation was authorized by an

established state procedure itself. Nor does he cite any authority indicating authorization

by a rogue state employee might allow the state to “predict when [a] loss will occur,”

thus putting it “in a position to provide for predeprivation process.” Id. at 532, 534.

Accordingly, we decline to address whether the assistant warden’s alleged authorization

renders Hudson inapplicable. See Fed. R. App. P. 28(a)(8)(A) (requiring appellant’s brief

to include “citations to the authorities . . . on which the appellant relies”); Bronson v.

Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (noting we routinely refuse to consider

arguments that fail to meet Rule 28’s requirements).

       Next, Stengel asserts the district court erred in concluding New Mexico’s state tort

remedies provide a postdeprivation remedy sufficient, under Hudson, to foreclose his due

process claim. According to Stengel, New Mexico’s remedies are “neither available nor

meaningful to an incarcerated uneducated pro se indigent petitioner with limited legal

access.” Aplt. Br. 17.

       We acknowledge the “unique obstacles” pro se prisoners face in obtaining legal

relief. Taylor v. Williams, 528 F.3d 847, 850 (11th Cir. 2008) (quoting Massaline v.

                                               5
	
	


Williams, 554 S.E.2d 720, 721 (Ga. 2001)). Yet Stengel provides no authority suggesting

those obstacles render such relief inadequate for purposes of Hudson. On the contrary,

the plaintiff in Hudson—for whom the Court found the state’s postdeprivation remedies

adequate—was a pro se inmate. 468 U.S. at 519-20, 536. We find no error in the district

court’s conclusion that Stengel’s complaint fails to state a claim.

       Alternatively, Stengel argues the court erred in sua sponte dismissing his

complaint without giving him a chance to amend it. See Perkins, 165 F.3d at 806

(explaining district court may only sua sponte dismiss pro se complaint for failure to state

a claim if amendment would be futile).

       First, Stengel asserts he would have amended his complaint to allege an intent to

retaliate. But we fail to see how such allegations might salvage his claims. Second,

Stengel says he would have alleged facts establishing the unavailability of meaningful

access to state remedies. Because Stengel doesn’t specify what those facts might be, we

can only assume he’s referring to his earlier assertion that indigent pro se prisoners lack

such access. For the reasons discussed above, we find that argument unconvincing.

       Finally, Stengel insists he would have “include[d] other constitutional violations

that had not occurred to him at the time such as Equal Protection and Eigth [sic]

Amendment claims.” Aplt. Br. 12. It’s unclear how the facts alleged in the complaint

would support such claims, and we can hardly expect district courts to be prescient. In

any event, Stengel provides neither arguments nor authorities suggesting he could state a

claim under either the Equal Protection Clause or the Eighth Amendment. Thus, we

decline to address this argument. See	Fed. R. App. P. 28(a)(8)(A) (explaining appellant’s

                                              6
	
	


brief must contain “contentions and the reasons for them, with citations to the authorities”

appellant relies on); Garrett, 425 F.3d at 841 (“[W]hen a pro se litigant fails to comply

with [Rule 28], we cannot fill the void by crafting arguments and performing the

necessary legal research.” (first alteration in original) (quoting Anderson v. Hardman,

241 F.3d 544, 545 (7th Cir. 2001))).

                                                           CONCLUSION

             For the reasons discussed above, we affirm the district court’s order dismissing

Stengel’s complaint with prejudice. And while we grant Stengel’s motion to proceed IFP

under	28 U.S.C. § 1915(a)(1),5 we remind him that § 1915(a)(1) only “excuse[s] the pre-

payment of fees.” Brown, 725 F.3d at 1231 (quoting Robbins v. Switzer, 104 F.3d 895,

898 (7th Cir. 1997)). Thus, Stengel “remains liable for the full amount of the filing fee,”

which he must pay when he is able. Id.

                                                               Entered for the Court,



                                                               Nancy L. Moritz
                                                               Circuit Judge




																																																								
             5
        Because Stengel is no longer incarcerated, the Prison Litigation Reform Act
doesn’t apply to him. Brown v. Eppler, 725 F.3d 1221, 1230 n.7 (10th Cir. 2013).
Nevertheless, § 1915(a)(1) “applies to all persons applying for IFP status, and not just to
prisoners.” Id. at 1229 n.6 (quoting Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312
(10th Cir. 2005)).

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