                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 October 12, 2010
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                    TENTH CIRCUIT


 MARK BUCHANAN,

          Plaintiff-Appellant,

 v.                                                      No. 10-6099
                                                 (D.C. No. 5:09-CV-00744-D)
 STATE OF OKLAHOMA;                                     (W.D. Okla.)
 OKLAHOMA DEPARTMENT OF
 EMERGENCY MANAGEMENT;
 OKLAHOMA DEPARTMENT OF
 CORRECTIONS; JUSTIN JONES;
 LEXINGTON ASSESSMENT AND
 RECEPTION CENTER; ERIC
 FRANKLIN; JIMMY GREEN; MIKE
 CARPENTER; CAPTAIN
 HAMPTON; TAMMY HILL,

          Defendants - Appellees.


                             ORDER AND JUDGMENT *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.




      *
             This Order and Judgment is not binding precedent, except under the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 Federal Rule of Appellate
Procedure 32.1 and 10th Circuit Rule 32.1.

             After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this matter. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
      Plaintiff-Appellant Mark Buchanan, a state prisoner proceeding pro se,

appeals the district court’s dismissal of his civil rights claims under 42 U.S.C.

§ 1983. 1 Mr. Buchanan also seeks a certificate of appealability (“COA”) to

challenge the district court’s dismissal of his claims, and requests leave to

proceed in forma pauperis (“IFP”) on appeal. For the reasons set forth below, we

AFFIRM the district court’s dismissal of Mr. Buchanan’s § 1983 claims,

DISMISS his application for a COA because it is not properly before us, and

DENY his renewed motion to proceed IFP on appeal.

                                  BACKGROUND

      Mr. Buchanan has sued the State of Oklahoma, two state agencies, two

Oklahoma correctional facilities, and individual prison officials and guards in

both their official and individual capacities, alleging that his constitutional rights

were violated when he was deprived of medical treatment, deprived of his

personal property, and denied access to the courts while incarcerated. Mr.

Buchanan’s complaint was referred to a magistrate judge.

      In a very thorough report and recommendation, the magistrate judge

recommended that the district court dismiss Mr. Buchanan’s § 1983 claims sua

sponte for failure to state a claim upon which relief may be granted. The

magistrate judge noted that some of Mr. Buchanan’s claims “sound[ed] in

      1
            We construe Mr. Buchanan’s pro se filings liberally. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam); Van Deelen v. Johnson, 497 F.3d
1151, 1153 n.1 (10th Cir. 2007).

                                           2
habeas.” R., Vol. 1, at 121 (Report and Recommendation, dated Mar. 4, 2010).

Generally, as the magistrate judge noted, Mr. Buchanan urged the court (without

much discussion) to provide all possible relief under the habeas corpus procedures

to address the alleged wrongfulness of his incarceration, and he challenged on

constitutional grounds the outcome of his prison disciplinary proceeding. The

magistrate judge concluded that “[h]abeas claims are not cognizable in a civil

rights action,” in that they “challenge[] the fact or duration of . . . confinement.”

Id. (quoting Wilkinson v. Dotson, 544 U.S. 74, 79 (2005)) (internal quotation

marks omitted). The magistrate judge “therefore recommended that all habeas

claims be dismissed without prejudice to Plaintiff[] asserting them in proper

habeas actions.” Id. at 121–22. The magistrate judge noted that the court “t[ook]

no position on the merits or timeliness of any habeas action.” Id. at 122 n.13.

Finally, the magistrate judge recommended that Mr. Buchanan be assessed a

strike, pursuant to 28 U.S.C. § 1915(g), in connection with his filing of the instant

§ 1983 action.

      The district court agreed fully with the magistrate judge’s conclusions,

including the magistrate judge’s recommendations concerning the disposition of

Mr. Buchanan’s § 1983 claims and his claims sounding in habeas. More

specifically, the district court adopted the Report and Recommendation and

dismissed Mr. Buchanan’s § 1983 claims with prejudice. Subsequently, the

district court issued an order denying Mr. Buchanan’s motion for leave to proceed


                                           3
IFP on appeal, having concluded that he had not demonstrated that his appeal was

in good faith. This appeal followed.



                                   DISCUSSION

      “We review de novo the district court’s decision to dismiss an IFP

complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.” Kay v.

Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). “Dismissal of a pro se complaint

for failure to state a claim is proper only where it is obvious that the plaintiff

cannot prevail on the facts he has alleged and it would be futile to give him an

opportunity to amend.” Id. (quoting Curley v. Perry, 246 F.3d 1278, 1281 (10th

Cir. 2001)) (internal quotation marks omitted).

      To state a claim for relief under 42 U.S.C. § 1983, “a plaintiff must allege

the violation of a right secured by the Constitution and laws of the United States,

and must show that the alleged deprivation was committed by a person acting

under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988) (emphasis

added). States, state agencies, and state officials acting in their official capacities

are not “persons” acting under color of state law; thus, Eleventh Amendment

sovereign immunity bars claims against these defendants unless the state has

waived that immunity, and Oklahoma has not waived its sovereign immunity as to

§ 1983 claims. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65–66 (1989);

Ramirez v. Okla. Dep’t of Mental Health, 41 F.3d 584, 588–89 (10th Cir. 1994),


                                           4
abrogated on other grounds by Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186

(10th Cir. 1998). Similarly, state-operated detention facilities do not have a

separate legal identity from the state, and therefore are not “persons” who have

the capacity to be sued under § 1983. See Aston v. Cunningham, No. 99-4156,

2000 U.S. App. LEXIS 14379, at *12 n.3 (10th Cir. June 21, 2000). The district

court was therefore correct to dismiss Mr. Buchanan’s claims against the state

governmental-entity defendants and the state officials in their official capacities.

      The district court also was correct to dismiss Mr. Buchanan’s claims

against defendants Jones, Franklin, Province, Green, Blair, Carpenter, Honaker,

Hill, the “Doe Security Major at DCCC,” members of the “Lexington Correctional

Security Staff,” and members of the “Dick Conners Correctional Security Staff”

in their individual capacities, as Mr. Buchanan failed to allege facts to show that

these defendants personally participated in the alleged constitutional violations.

See Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1214 (10th Cir. 2003),

abrogated on other grounds by Jones v. Bock, 549 U.S. 199 (2007).

      Mr. Buchanan’s remaining claims against individual defendants fail to

allege constitutional violations that would warrant relief under § 1983. Mr.

Buchanan, who is diabetic, alleges that he was not allowed to eat immediately

after receiving his insulin shots, did not receive his medication on several

occasions, and was deprived of a back brace. He also alleges that he was

confined to an unsanitary cell, that his property was lost when prison officials


                                          5
negligently failed to secure that property or intentionally confiscated it, and that

he was denied adequate access to the prison library.

      We conclude, however, that Mr. Buchanan’s personal hygiene claims are

not sufficiently serious to rise to the level of Eighth Amendment violations. See

Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir. 2008) (“[T]he alleged injury or

deprivation must be sufficiently serious. The official’s act or omission must result

in the denial of ‘the minimal civilized measure of life’s necessities.’” (quoting

Farmer v. Brennan, 511 U.S. 825, 832 (1994))).

      Furthermore, none of Mr. Buchanan’s allegations regarding loss or

confiscation of his personal property are sufficient to state a claim for a due

process violation. Insofar as the prison officials merely acted with simple

negligence, that would not be enough to raise due process concerns. See Daniels

v. Williams, 474 U.S. 327, 330–31 (1986) (overruling prior precedent “to the

extent that it states that mere lack of due care by a state official may ‘deprive’ an

individual of life, liberty, or property under the Fourteenth Amendment”); see

also Archuleta v. McShan, 897 F.2d 495, 497 (10th Cir. 1990) (discussing

Daniels). Even if Mr. Buchanan’s property-related claims did raise due process

concerns, unauthorized deprivations of a prisoner’s property do not violate due

process where state post-deprivation remedies are available, and Oklahoma law

provides such remedies. Hudson v. Palmer, 468 U.S. 517, 533 (1984); see Okla.

Stat. tit. 12, §§ 1571–71.1 (replevin); Okla Stat. tit. 51, §§ 151-171


                                           6
(Governmental Tort Claims Act).

      With regard to his medical-needs claims, Mr. Buchanan has not

demonstrated that he suffered substantial harm or that individual defendants acted

with a culpable state of mind as required under the Eighth Amendment. See

Callahan v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006) (noting that “a

prisoner must have suffered ‘acts or omissions sufficiently harmful to evidence

deliberate indifference to serious medical needs’” (quoting Estelle v. Gamble, 429

U.S. 97, 106 (1976))). He also has failed to explain how the prison library rules

deprived him of access to the courts. See Trujillo v. Williams, 465 F.3d 1210,

1226 (10th Cir. 2006) (holding that to state a claim for denial of a right of access

to the courts, a defendant “‘must show that any denial or delay of access to the

court prejudiced him in pursuing litigation’” (quoting Treff v. Galetka, 74 F.3d

191, 194 (10th Cir. 1996))). In sum, the district court’s dismissal of Mr.

Buchanan’s § 1983 claims was entirely appropriate.

      We also dismiss Mr. Buchanan’s misguided application for a COA, without

undertaking the traditional COA analysis defined by the Supreme Court in Miller-

El v. Cockrell, 537 U.S. 322, 327 (2003), and Slack v. McDaniel, 529 U.S. 473,

478 (2000). Although his application is far from pellucid, Mr. Buchanan appears

primarily to request a COA to appeal from the district court’s determinations

concerning the property and medical-needs claims that he pursued under § 1983.

As to these claims, the COA procedure is patently inapposite. It is beyond


                                          7
peradventure that a COA is not necessary to appeal from a district court’s

resolution of § 1983 claims. See 28 U.S.C. § 2253(c)(1)(A) (noting that a COA is

required to appeal from “the final order in a habeas corpus proceeding in which

the detention complained of arises out of process issued by a State court”

(emphasis added)); Miller-El, 537 U.S. at 335–36 (“Before an appeal may be

entertained, a prisoner who was denied habeas relief in the district court must

first seek and obtain a COA from a circuit justice or judge.” (emphasis added));

see also 2 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and

Procedure § 35.4a, at 1753 (5th ed. 2005) (discussing the COA requirement and

noting that “[i]n contrast to the unrestricted availability of appeals in most other

civil litigation, there is no appeal as of right for prisoners in habeas and section

2255 cases”); cf. Harbison v. Bell, __ U.S. __, 129 S. Ct. 1481, 1485 (2009)

(“This provision [§ 2253(c)(1)(A)] governs final orders that dispose of the merits

of a habeas corpus proceeding—a proceeding challenging the lawfulness of the

petitioner’s detention. An order that merely denies a motion to enlarge the

authority of appointed counsel (or that denies a motion for appointment of

counsel) is not such an order and is therefore not subject to the COA

requirement.” (emphasis added) (citations omitted)). Indeed, we have entertained

Mr. Buchanan’s appeal from the district court’s resolution of his § 1983 claims.

Contrary to Mr. Buchanan’s apparent desire, however, we determined on careful

review of the record that the district court did not err.


                                           8
      Insofar as Mr. Buchanan’s COA application may be liberally read to

address the claims that the district court identified as sounding in habeas, Mr.

Buchanan’s request for a COA is similarly ill-conceived. The district court did

not purport to address either the procedural viability or the substance of Mr.

Buchanan’s habeas claims. Rather, the court elected to dismiss them “without

prejudice to their assertion in a properly filed habeas action, assuming Plaintiff

can satisfy the applicable statute of limitations for filing a habeas claim.” R.,

Vol. 1, at 143 (Dist. Ct. Order, dated Apr. 8, 2010). In other words, the district

court did not adjudicate on either procedural or substantive grounds Mr.

Buchanan’s habeas claims. 2 Cf. Boutwell v. Keating, 399 F.3d 1203, 1210–11

(10th Cir. 2005) (upholding district court’s decision to construe prisoner’s § 1983

complaint as a habeas petition “[a]fter determining that [the prisoner’s] claims

were not cognizable under § 1983” and to dismiss those habeas claims on the

merits “because the facts alleged in the petition even if true fail to establish a



      2
              In Rael v. Williams, 223 F.3d 1153 (10th Cir. 2000), we responded in
an analogous fashion to a somewhat obverse situation—viz., a situation in which
the thrust of the action sounded in habeas under 28 U.S.C. § 2241, but the action
also included claims not sounding in habeas. Id. at 1154–55. We (1) endorsed
the district court’s decision to resolve the habeas claim at the heart of the action;
(2) granted a COA as to that habeas claim; and (3) held that “all other claims [not
sounding in habeas] contained in the petition are dismissed without prejudice.”
Id. (emphasis added). Here, of course, the thrust of the action sounded in § 1983
(not habeas), and the district court addressed those § 1983 claims on the merits,
and dismissed all other claims not sounding in § 1983 (i.e., sounding in habeas)
without adjudicating them and without prejudice.


                                           9
constitutional violation”). Consequently, the court’s action did not result in a

habeas ruling, which Mr. Buchanan could only appeal by first obtaining a COA.

If Mr. Buchanan brings a habeas action in the future and the district court does

not afford him satisfactory relief, then he may apply for a COA to appeal from the

district court’s habeas ruling. But, at the present time, Mr. Buchanan’s

application for a COA is not predicated upon a district court habeas ruling and,

accordingly, it is premature. Thus, for the foregoing reasons, we dismiss Mr.

Buchanan’s application for a COA.

      Finally, we deny Mr. Buchanan’s renewed motion to proceed IFP on

appeal, as he has failed to present a “reasoned, nonfrivolous argument on the law

and facts in support of the issues raised on appeal.” Caravalho v. Pugh, 177 F.3d

1177, 1177 (10th Cir. 1999).

                                  CONCLUSION

      For the foregoing reasons, we AFFIRM the district court’s order

dismissing Mr. Buchanan’s § 1983 claims, DISMISS Mr. Buchanan’s application

for a COA, and DENY his renewed motion for leave to proceed IFP on appeal.




                                         10
We direct Mr. Buchanan to remit the full amount of the appellate filing fee. 3


                                              ENTERED FOR THE COURT



                                              Jerome A. Holmes
                                              Circuit Judge




      3
           We also deny Mr. Buchanan’s recently filed “Motion to File a
Supplemental Brief.”

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