                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                                    TENTH CIRCUIT                         October 7, 2015

                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court

 AUSTIN RAY,

        Plaintiff - Appellant,

 v.                                                         No. 15-1318
                                                   (D.C. No. 1:15-CV-01658-LTB)
 MATTHEW GARTH, Special Agent;                                (D. Colo.)
 FOURTEEN UNKNOWN AGENTS;
 DOES 1-100,

        Defendants - Appellees.


                                 ORDER AND JUDGMENT*


Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges.


      Pro se plaintiff Austin Ray sued IRS Special Agent Matthew Garth, 14 unknown

agents, and Does 1-100 seeking relief under Bivens v. Six Unknown Named Agents of the

Federal Bureau of Investigation, 403 U.S. 388 (1971), for violations of procedural and

substantive due process and equal protection.

       * After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with Fed. R. App.
P. 32.1 and 10th Cir. R. 32.1.
       Mr. Ray filed his complaint on August 3, 2015. He alleged that (1) defendants

deprived him of his property when they executed a search warrant at his tax preparation

business on April 6, 2010, and seized tax preparation equipment and related items, (2) he

was entitled to a pre- and post-deprivation hearing, and (3) the seizure left him without

access to tax returns and he therefore could not timely file corrected returns to avoid

indictment for tax crimes on April 10, 2014. He requested suppression of all evidence

seized in United States v. Ray, No. 14-cr-00147-MSK-2 (D. Colo., filed Apr. 10, 2014),

and compensatory and punitive damages.

       The district court dismissed the complaint as legally frivolous under 28 U.S.C.

§ 1915(e)(2)(B)(i). It determined that (1) suppression of evidence would be an improper

remedy, noting that Mr. Ray has filed a motion to suppress in his criminal proceeding; (2)

the risk of removal, concealment, or destruction of the property justified postponement of

notice and hearing until after seizure, citing Calero-Toledo v. Pearson Yacht Leasing Co.,

416 U.S. 663, 678 (1974); and (3) Mr. Ray has not alleged that any of his property is

subject to destruction or forfeiture, and his argument about his inability to access tax

returns and make corrections to evade indictment should be made in his criminal case and

not in a Bivens action.

       We review the dismissal of a complaint under 28 U.S.C. § 1915(e)(2)(B)(i) for

abuse of discretion. McWilliams v. Colorado, 121 F.3d 573, 574-75 (10th Cir. 1997). As

the district court did, we interpret Mr. Ray’s pro se complaint liberally. See Haines v.


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Kerner, 404 U.S. 519, 520-21 (1972). In doing so, we agree with the district court that

the complaint must be dismissed as legally frivolous.

       First, nowhere in his complaint or his brief to this court does Mr. Ray indicate how

the procedure afforded for his motion to suppress would be inadequate to address any

property deprivation. His complaint therefore fails to state a procedural due process

claim. See Parratt v. Taylor, 451 U.S. 527, 543 (1981), overruled in part on other

grounds by Daniels v. Williams, 474 U.S. 327 (1986).

       Second, the complaint also fails to state an equal protection claim because it does

not allege facts showing disparate treatment. See Kan. Penn Gaming, LLC v. Collins,

656 F.3d 1210, 1217 (10th Cir. 2011); Brown v. Montoya, 662 F.3d 1152, 1172-73 (10th

Cir. 2011).

       Third, the complaint equates the substantive due process claim with the procedural

due process claim and otherwise does not allege facts showing executive government

action that “can properly be characterized as arbitrary, or conscience shocking, in a

constitutional sense,” Cty. of Sacramento v. Lewis, 523 U.S. 833, 837 (1998), under any

case authority. It therefore fails to state a substantive due process claim.

       Finally, in Ingram v. Faruque, 728 F.3d 1239 (10th Cir. 2013), this court pointed

out the Supreme Court’s reluctance to authorize actions under Bivens, especially when, as

here, there is an “alternative, existing process for protecting the interest” alleged. Id. at

1243-44.


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       We dismiss this appeal as frivolous and impose a strike under 28 U.S.C.

§ 1915(g). See Jennings v. Natrona Cty. Det. Ctr. Med. Facility, 175 F.3d 775, 780-81

(10th Cir. 1999). We deny Mr. Ray’s request to proceed in forma pauperis; he is

therefore responsible for immediate payment of the unpaid balance of his appellate filing

fee.

                                                 ENTERED FOR THE COURT



                                                 Scott M. Matheson, Jr.
                                                 Circuit Judge




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