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

                            FOR THE TENTH CIRCUIT                      October 15, 2012

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
MARTIN JAMES PETERSON,

             Plaintiff-Appellant,

v.                                                         No. 11-8107
                                                 (D.C. No. 2:11-CV-00231-CAB)
ROBERT O. LAMPERT, Director,                                (D. Wyo.)
Wyoming Department of Corrections, in
his official capacity; RICHARD L.
CATON, Facility Director, Casper
Re-Entry Center, in his official capacity,

             Defendants-Appellees.


                            ORDER AND JUDGMENT*


Before TYMKOVICH, HOLLOWAY, and MATHESON, Circuit Judges.


      Plaintiff Martin James Peterson, proceeding pro se and in forma pauperis,

appeals from dismissal of his 42 U.S.C. § 1983 prisoner civil rights complaint. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.



*
      After examining the briefs and 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); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
       Plaintiff brought this action as a result of the alleged loss of certain religious

personal property, including a crystal wand, tarot cards, feathers, incense, a prayer

cloth, and a satanic Bible, after a transfer from the Casper Re-Entry Center (CRC) to

the Wyoming State Penitentiary (WSP). Two boxes of Plaintiff’s property left the

CRC, but WSP employees only received one box. Plaintiff alleged the loss of these

items restricted his ability to practice his religion. He demanded $1,000 per day from

April 1, 2010, until January 17, 2014, for loss of religious rights; $624,000 to

compensate him for not being able to perform his religious rituals; and $800,000 for

Defendants’ failure to “perform[] their duties that is [sic] [r]equired of them [b]y

[the] [S]tate of Wyoming.” R. at 12. Plaintiff submitted multiple grievance forms in

his effort to recover his personal property. WSP officials conducted an investigation

and found that WSP had no record of receiving more than one box from CRC.

Defendant Richard L. Catron (improperly captioned as Richard L. Caton), facility

director of CRC,1 responded to Plaintiff’s grievance requests and agreed to pay for a

Satanic Bible, the only item he could verify as missing. Plaintiff’s further grievance

requests to WSP were returned as deficient.



1
        Plaintiff sued Defendants in their official capacities in the district court. In his
appellate filings, Plaintiff now attempts to include Defendants in their individual
capacities. Plaintiff’s motion to amend in the district court did not include adding
Defendants in their individual capacities, and Plaintiff did not otherwise raise the
issue earlier. We do not consider claims raised for the first time on appeal. See Ark
Initiative v. U.S. Forest Serv., 660 F.3d 1256, 1261 (10th Cir. 2011) (“If the claims
are not preserved in the district court, they are forfeited and may not be appealed.”).


                                           -2-
       Defendant Catron moved for dismissal pursuant to Fed. R. Civ. P. 12(b)(6) for

failure to state a claim upon which relief can be granted. Since Plaintiff did not

specify the legal grounds for his claims, the district court liberally interpreted his

complaint to set forth three possible claims: (1) a violation of due process under the

Fourteenth Amendment for deprivation of his religious property; (2) a violation of his

right to free exercise of religion under the First Amendment; and (3) a statutory claim

under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA),

42 U.S.C. § 2000cc-1. The district court held that a meaningful post-deprivation

remedy satisfied Plaintiff’s due process rights. The district court also held that

Plaintiff failed to state a claim that Defendants violated his First Amendment rights

because Plaintiff did not allege that any prison regulation or procedure was

responsible for the loss of his religious items. Finally, the district court held that

Plaintiff could not prevail under RLUIPA.

       Defendant Robert O. Lampert, Director of Wyoming Department of

Corrections, moved separately to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) for lack

of subject matter jurisdiction based on Eleventh Amendment immunity, and in the

alternative for failure to state a claim under Rule 12(b)(6). The district court held

that Eleventh Amendment immunity applied and that the court therefore lacked

jurisdiction over Plaintiff’s claims, which sought “damages for past acts and not

prospective injunctive relief.” R. at 172.




                                             -3-
      The district court also held that based on the facts alleged it would be futile for

Plaintiff to amend his complaint against either Defendant. He therefore denied

Plaintiff’s request to amend. Plaintiff appeals.

      We review a district court’s dismissal of a § 1983 complaint for failure to state

a claim de novo. See Riddle v. Mondragon, 83 F.3d 1197, 1201 (10th Cir. 1996).

We also review de novo a district court’s dismissal pursuant to Rule 12(b)(1) for lack

of jurisdiction based on Eleventh Amendment immunity. See Elephant Butte

Irrigation Dist. of N.M. v. Dep’t of Interior, 160 F.3d 602, 607 (10th Cir. 1998). A

district court’s dismissal of a pro se plaintiff’s complaint without allowing an

opportunity to amend the complaint is permissible “when it is patently obvious that

the plaintiff could not prevail on the facts alleged, and allowing him an opportunity

to amend his complaint would be futile.” McKinney v. Okla. Dep’t of Human Servs.,

925 F.2d 363, 365 (10th Cir. 1991) (internal quotation marks and citation omitted).

We review such decisions de novo. See Gohier v. Enright, 186 F.3d 1216, 1218

(10th Cir. 1999).

      There is no Fourteenth Amendment “due process violation [] when a state

employee negligently deprives an individual of property, so long as the state provides

an adequate post-deprivation remedy.” Wolfenbarger v. Williams, 774 F.2d 358, 363

(10th Cir. 1985). Further, a negligent act alone cannot form the basis of a Fourteenth

Amendment property-deprivation claim. See Daniels v. Williams, 474 U.S. 327,

330-331 (1986). It is also true that there is no due process violation where the loss of


                                          -4-
property results from the intentional, but random and unauthorized act of a state

employee, where an adequate post-deprivation remedy exists. See Hudson v. Palmer,

468 U.S. 517, 533 (1984). “Th[e] distinction between random, unauthorized conduct

and conduct pursuant to established state procedure is significant.” Wolfenbarger,

774 F.2d at 364.

       It appears from the pleadings that Plaintiff has pled negligent behavior on

behalf of Defendants, and thus his claims fall short of a due process claim. But even

if Plaintiff could plead that the loss of his property was the result of intentional

behavior, Plaintiff has failed to claim that an established state procedure, or anything

other than a random, unauthorized act, was responsible for the missing box.

Furthermore, Plaintiff participated in the prison’s grievance process, which is a

sufficient post-deprivation remedy.2 See Hudson, 468 U.S. at 536 n.15. Therefore,

Plaintiff’s due process claims fail.

       “Inmates . . . retain protections afforded by the First Amendment, including its

directive that no law shall prohibit the free exercise of religion.” O’Lone v. Estate of

Shabazz, 482 U.S. 342, 348 (1987) (citation omitted). “[I]n order to allege a

constitutional violation based on a free exercise claim, a prisoner-plaintiff must

survive a two-step inquiry.” Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007).


2
     Plaintiff had a further post-deprivation remedy in the form of a replevin action
based on contract in the Oklahoma state courts. See Gibson v. Copeland, 13 P.3d
989, 991-92 (Okla. Ct. App. 2000); see also Okla. Stat. tit. 12, § 1751(A)(2) (2012).
Plaintiff does not allege that such remedy was unavailable or deficient.


                                           -5-
The plaintiff “must first show that a prison regulation substantially burdened

sincerely-held religious beliefs.” Id. (internal quotation marks and ellipsis omitted).

Plaintiff in this case has failed to show a prison regulation that substantially burdened

his free exercise of religion, and thus he fails to survive step one. Furthermore, as

the district court noted, “an isolated act of negligence would not violate an inmate’s

First Amendment right to free exercise of religion.” Gallagher v. Shelton, 587 F.3d

1063, 1070 (10th Cir. 2009). Thus, Plaintiff’s First Amendment claims also fail.

       A plaintiff must set forth three elements in a RLUIPA claim: a defendant must

want “to engage in (1) a religious exercise (2) motivated by a sincerely held belief,

which exercise (3) is subject to a substantial burden imposed by the government.”

Abdulhaseeb v. Calbone, 600 F.3d 1301, 1312 (10th Cir. 2010). A person’s religious

exercise is substantially burdened

             when a government (1) requires participation in an activity
             prohibited by a sincerely held religious belief, or (2) prevents
             participation in conduct motivated by a sincerely held religious
             belief, or (3) places substantial pressure on an adherent either not
             to engage in conduct motivated by a sincerely held religious
             belief or to engage in conduct contrary to a sincerely held
             religious belief.

Id. at 1315. Unlike the plaintiff in Abdulhaseeb, Plaintiff in this case has failed to

identify any prison policy that prevented his participation or substantially burdened

his right to exercise his religion. See id. at 1317. Thus, Plaintiff’s RLUIPA claims

also fail.




                                          -6-
       As for Plaintiff’s claims against Defendant Lampert, it is well-established that

“the Eleventh Amendment precludes a federal court from assessing damages against

state officials sued in their official capacities because such suits are in essence suits

against the state.” Hunt v. Bennett, 17 F.3d 1263, 1267 (10th Cir. 1994). This

Eleventh Amendment bar also applies to RLUIPA claims. See Sossamon v. Texas,

131 S. Ct. 1651, 1663 (2011). As Plaintiff only requests money damages in his

complaint, his claims are necessarily barred.

       Finally, as for Plaintiff’s motion to amend his complaint, leave to amend a

complaint should be freely granted in the interest of justice. See Fed. R. Civ. P.

15(a)(2). However, the district court aptly noted that “since [Plaintiff’s] claims are

confined to a single instance, and nothing more, giving him an opportunity to amend

his Complaint would be futile. There is no way in which the negligent loss of one

box of religious items could be framed to constitute a Constitutional violation.” R. at

187; see also Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006)

(“A dismissal with prejudice is appropriate where a complaint fails to state a claim

under Rule 12(b)(6) and granting leave to amend would be futile.”). We agree.

Further, Plaintiff’s proposed amended complaint merely added the claim that

Defendants were responsible for the actions of their employees. In fact, “under

42 U.S.C. § 1983, government officials may not be held vicariously liable for the

conduct of their subordinates.” See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).




                                           -7-
       We accordingly AFFIRM the district court’s dismissal of Plaintiff’s claims.

All other pending motions are DENIED as moot.3


                                                  Entered for the Court


                                                  William J. Holloway, Jr.
                                                  Circuit Judge




3
        The district court granted Plaintiff ifp status and ordered the WSP officials to
make periodic withdrawals from Plaintiff’s account until the court’s fees were paid in
full. It is unclear whether Plaintiff is still incarcerated. If so, we note that the district
court’s order is still in effect.


                                            -8-
