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

                             FOR THE TENTH CIRCUIT                         January 29, 2019
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
 TODD K. ROBINSON,

       Plaintiff - Appellant,

 v.                                                         No. 18-1108
                                                   (D.C. No. 1:17-CV-01872-LTB)
 JOHN OR JANE DOE, CDOC                                       (D. Colo.)
 Administrator; JOHN OR JANE DOE,
 CDOC Canteen Services; JOHN OR JANE
 DOE, CDOC Marketing; JOHN OR JANE
 DOE, Sales, CDOC,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before McHUGH, BALDOCK, and O’BRIEN, Circuit Judges.
                  _________________________________

      Pro se state prisoner Todd K. Robinson sued the Colorado Department of

Corrections (CDOC) and various John/Jane Doe employees, alleging a violation of

his due-process rights when he lost the ability to play music on an electronic tablet he

purchased from the prison canteen. According to Robinson, he paid $1,568.12 for



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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 with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
the music, and when the tablet subsequently “needed adjustment . . . to continue its

function,” R. at 7, he could not get it adjusted because CDOC had cancelled its

contract with the tablet’s servicer.

      The district judge screened the complaint and ordered Robinson to show cause

why it should not be dismissed as legally frivolous, see 28 U.S.C. § 1915A, given he

appeared to lack a protected property interest in the usability of music recordings on

his tablet, see Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir. 2006) (“[A]

deprivation occasioned by prison conditions or a prison regulation does not reach

protected [property] interest status and require procedural due process protection

unless it imposes an ‘atypical and significant hardship on the inmate in relation to the

ordinary incidents of prison life.’” (quoting Sandin v. Conner, 515 U.S. 472, 484

(1995)). Robinson responded, asserting Sandin did not apply because he had “a

bilateral agreement” with CDOC for “the ownership and use” of property. R. at 42.

      The judge disagreed and dismissed the complaint as legally frivolous. The

district court explained (1) Robinson had not alleged “‘conditions much different

from those ordinarily experienced by inmates serving their sentences in the

customary fashion,’” id. at 53 (quoting Steffey, 461 F.3d at 1222); and (2) the

challenged deprivation concerned only the use, rather than ownership, possession, or

control of property, see Hatten v. White, 275 F.3d 1208, 1210 (10th Cir. 2002)

(“While an inmate’s ownership of property is a protected property interest that may

not be infringed without due process, there is a difference between the right to own

property and the right to possess property while in prison.”). Moreover, he

                                           2
explained, even if Robinson had alleged the deprivation of a protected property

interest, the CDOC grievance procedure he ultimately invoked was an adequate and

available postdeprivation remedy—regardless of his success in using it,1 see Hudson

v. Palmer, 468 U.S. 517, 533 (1984) (“hold[ing] . . . an unauthorized intentional

deprivation of property by a state employee does not constitute a violation of the

procedural requirements of the Due Process Clause of the Fourteenth Amendment if a

meaningful postdeprivation remedy for the loss is available”); Allen v. Reynolds,

475 F. App’x 280, 283 (10th Cir. 2012) (holding prisoner’s “argument on appeal . . .

he gained no relief through the [prison’s] grievance process [wa]s insufficient to

show . . . the process was unavailable or inadequate”).2

       Finally, the judge certified Robinson lacked a good-faith basis to appeal, and

he denied Robinson’s request for in-forma-pauperis (IFP) status. See 28 U.S.C.

§ 1915(a)(3) (“An appeal may not be taken [IFP] if the trial court certifies in

writing . . . it is not taken in good faith.”).

       Nevertheless, Robinson now appeals. He renews his IFP request and argues

the district court erred in dismissing his complaint because CDOC—by implementing


       1
        Robinson filed grievances seeking an adjustment for his tablet or a refund.
CDOC responded it no longer had a contract with the manufacturer, and Robinson
could “send [the tablet] home or have the facility destroy it[,] . . . [or] [have] [the
manufacturer] burn” a copy of the music. R. at 19. Ultimately, CDOC denied
Robinson’s grievances, stating he “failed to follow the grievance procedure” by not
exhausting administrative remedies. Id. at 24.
       2
       See 10th Cir. R. 32.1(A) (“Unpublished decisions are not precedential, but
may be cited for their persuasive value.”); see also Fed. R. App. P. 32.1.

                                                  3
a regulation “govern[ing] the control and safeguarding of offender personal

property,”3 and selling him a tablet and music—created a liberty and/or property

interest in the items he bought. But Robinson has provided no argument undermining

any of the district court’s reasoning.

       Specifically, a prison regulation governing what prisoners may possess in their

cells will create a protected liberty or property interest only if the deprivation of the

interest meets the Sandin test, imposing atypical and significant hardship on the

inmate in relation to the ordinary incidents of prison life. See Cosco v. Uphoff,

195 F.3d 1221, 1223-24 (10th Cir. 1999) (per curiam) (explaining a prison regulation

permitting prisoners to keep certain items did not create a property interest in those

items); see also Sandin, 515 U.S. at 481-82 (explaining prison regulations are

“primarily designed to guide correctional officials in the administration of a prison,”

rather than “confer rights on inmates”). The circumstances surrounding Robinson’s

inability to get his music tablet adjusted do not involve such a significant departure

from normal prison conditions as to create a liberty or property interest protected by

the Fourteenth Amendment’s Due Process Clause. Indeed, Robinson has not been

deprived of ownership or possession of any property. And in any event, he had

access to a meaningful postdeprivation remedy; there is no requirement that he

receive the remedy of his choosing.


       3
         See CDOC Admin. Reg. #850-06 (declaring the regulation’s purpose “is to
prescribe consistent limitations for the volume and type of property allowed to be
maintained by an offender and to provide instructions for the acquisition,
identification, transportation, storage, and disposal of offender property”).
                                            4
      Accordingly, for substantially the same reasons identified by the district court,

we dismiss Robinson’s appeal as frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i)

(requiring the dismissal of a frivolous appeal); Neitzke v. Williams, 490 U.S. 319, 324

(1989) (explaining an appeal is frivolous if it “lacks an arguable basis either in law or

in fact.”). We deny Robinson’s motion to proceed IFP, and we order him to

immediately pay the full amount of all remaining appellate filing and docketing fees.

See DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991) (observing IFP

status requires both “a financial inability to pay the required filing fees” and “a

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

on appeal”). Although these fees are immediately due in full, our prior order of

April 23, 2018, requiring periodic payments described in 28 U.S.C. § 1915(b)(1),

remains in effect until all fees are paid in full. Payment must be made to the clerk of

the United States District Court for the District of Colorado.

      Finally, we note the district court’s dismissal and our dismissal each count as a

28 U.S.C. § 1915(g) strike. See Jennings v. Natrona Cty. Det. Ctr. Med. Facility,

175 F.3d 775, 780 (10th Cir. 1999), overruled on other grounds by Coleman v.

Tollefson, 135 S. Ct. 1759, 1763 (2015).


                                             Entered for the Court


                                             Terrence L. O’Brien
                                             Circuit Judge




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