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

                            FOR THE TENTH CIRCUIT                             July 19, 2017
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
CHAD A. COBURN,

      Plaintiff - Appellant,

v.                                                           No. 16-7076
                                                       (6:15-00195-RAW-SPS)
TIM WILKINSON, Warden, Davis                                 (E.D. Okla.)
Correctional Facility, a/k/a Tim Wilkens;
MRS. CARTWRIGHT, Property Officer;
MS. MORRISON, Property Officer,

      Defendants - Appellees.
                     _________________________________

                            ORDER AND JUDGMENT
                        _________________________________

Before HARTZ, MURPHY, and PHILLIPS, Circuit Judges.
                  _________________________________

      Chad A. Coburn, a state prisoner appearing pro se, appeals the dismissal of a

§ 1983 action. Coburn alleges that his constitutional rights were violated when prison

employees deprived him of his rights to due process and equal protection. Because

we conclude that Coburn has received the full extent of due process to which he was

entitled, and because he has failed to allege sufficient facts to support an equal-

protection claim, we affirm the district court’s ruling and dismiss this appeal.


      
         This order and judgment is not binding precedent, except under the doctrines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 Appellate Procedure 32.1 and 10th
Circuit Rule 32.1.
                                    BACKGROUND

       On June 17, 2014, Coburn, an inmate in the custody of the Oklahoma

Department of Corrections housed at Davis Correctional Facility in Holdenville,

Oklahoma, was removed from his job in the prison-facility kitchen for misbehavior.

He was issued misconduct charges for “possession of contraband, failure to follow

verbal orders, theft, and threatening another with harm,” and was escorted to the

prison facility’s segregation unit. R. at 35.

       Joanne Cartwright, the Davis Correctional Facility Property Supervisor, heard

over her radio that Coburn was being moved to segregation. As part of her

responsibilities, she asked another correctional officer to secure Coburn’s belongings

in his cell, numbered AS 108, until she could pack and inventory his property.

Cartwright then inventoried Coburn’s property by listing his belongings on the prison

facility’s “Personal Property Receipt” form, noted that the belongings were in cell

number AS 108, and gave the form to Coburn for his review. Coburn signed the form

that day and was admitted to the segregation unit. On September 29, 2014, Coburn

was discharged from the segregation unit and signed the form again.

       While in segregation, Coburn submitted two “Lost/Damaged/Stolen Personal

Property Claim” forms, alleging that some of his property1 had been stolen or lost. Id.


       1
        Coburn alleged that an “RCA Remote” was lost or damaged and the
following were stolen: “New Sangean Clear, Head Phones with Bud Koss, Head
                                                2
at 51-56. Cartwright, acting as the Property Supervisor, investigated and denied the

claims, noting that she had personally inventoried and collected Coburn’s property.

Warden Tim Wilkinson reviewed the claims and approved the denial. Coburn then

filed a “Denied Property Claim Appeal” with Warden Wilkinson, who reviewed and

then denied the appeal. Id. at 53.

      Coburn then filed a civil rights complaint against prison officials in federal

court under 42 U.S.C. § 1983, alleging a violation of his due-process rights and his

rights to equal protection under the Fourteenth Amendment. At the district court,

Coburn argued that prison officials had “neglected their own polic[ie]s and

procedures and protocol and failed to do the[ir] JOB. [W]hich created a neglecting of

offenders property interest.” Id. at 8. Specifically, Coburn argued that prison officials

had inventoried and noted the wrong cell—FC 209—when Coburn was in fact housed

in AS 108. Coburn also alleged that “prison officials . . . pick [and] choose people

who they want to help and not help.” Id. at 17. In his complaint, Coburn asserted that

he had sought administrative remedies and exhausted the administrative process.

Coburn did not allege that the administrative process was defective.

      Prison officials filed a motion to dismiss the claim under 42 U.S.C. § 1997e(a)

and Federal Rules of Civil Procedure Rule 12(b)(6), arguing that Coburn had failed

to state a claim upon which relief could be granted. Attacking the violation-of-due-

process claim, prison officials argued that Coburn had received and signed the


Phone [Extension], Hot Pot, Electrical Power Bar, [three] Pair[s] of Dickies Blue 36
36, Brown Boots, Air Jordans, Gold Chain with cross.” R. at 51, 55.
                                            3
property inventory sheet, had not provided any evidence of ownership of the items

claimed on the “Lost/Damaged/Stolen Property Claim,” and had received the full

measure of due process to which he was entitled. Id. at 80-82. Prison officials

commented that Coburn “may be upset that his claim was denied, but he was not

denied access to the process.” Id. at 82. Regarding Coburn’s claim of a denial of

equal protection, prison officials argued that Coburn did not provide sufficient facts

and that his allegations were “self-serving, vague, and conclusory.” Id. at 83.

      The district court agreed and granted the motion to dismiss. The district court

found that the prison facility had a clear process in place to address the loss of inmate

property, noting that Coburn’s claims were submitted, investigated, and denied, and

that the warden had reviewed and approved the denial. The court also found that the

“Personal Property Receipt” form had noted the correct cell number—AS 108—and

that Coburn acknowledged the form by signing it twice. Id. at 141-42. Further, the

district court found that Coburn had received the full measure of due process to

which he was entitled, noting that the “fact that his claim was denied does not equate

to a denial of due process.” Id. at 143. As for Coburn’s equal-protection claim, the

district court noted that a plaintiff must allege that he was treated differently because

of a suspect classification, which Coburn had not done. The court concluded that

Coburn had failed to allege sufficient facts and that his claim was vague and

conclusory, and thus failed to state an equal protection claim. The district court

dismissed Coburn’s complaint for failure to state a claim and counted it as his first

strike under 28 U.S.C. § 1915(g). Coburn filed a timely appeal.

                                            4
                                     DISCUSSION

I.    Standard of Review

      We review de novo the district court’s decision to dismiss a complaint under

28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim. Perkins v. Kansas Dept. of

Corrections, 165 F.3d 803, 806 (10th Cir. 1999). We apply the same standard of

review for § 1915(e)(2)(B)(ii) dismissals as we do for Federal Rule of Civil

Procedure Rule 12(b)(6) motions. Kay v. Bemis, 500 F.3d 1214, 1217-18 (10th Cir.

2007). Despite this similarity, dismissing a pro se complaint for failure to state a

claim under § 1915(e)(2)(B)(ii) is proper only where it is (1) obvious that the

plaintiff cannot prevail on the facts he has alleged, and (2) it would be futile to give

him an opportunity to amend. Perkins, 165 F.3d at 806.

      As for 12(b)(6) motions, we look to the plausibility of the complaint,

specifically the “allegations in the complaint to determine whether they plausibly

support a legal claim for relief.” Kay, 500 F.3d at 1218 (internal quotation marks

omitted). Further, allegations in a complaint “must be enough to raise a right to relief

above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Because Coburn is a pro se litigant, we construe his pleadings liberally, but we do not

serve as his advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).



                                            5
Turning now to Coburn’s complaints, we find that he cannot prevail on the facts

alleged and we are convinced an amended complaint would be futile.




II.   14th Amendment Violation Claims

      A.     Due Process

      The Fourteenth Amendment prohibits a state from depriving “any person of

life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1.

A state must not “deprive a person of life, liberty or property unless fair procedures

are used in making that decision.” Copelin-Brown v. New Mexico State Pers. Office,

399 F.3d 1248, 1254 (10th Cir. 2005) (quoting Archuleta v. Colo. Dep’t of Insts.,

Div. of Youth Servs., 936 F.2d 483, 490 (10th Cir. 1991)). The Supreme Court has

held that “an unauthorized intentional deprivation of property . . . 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.” Hudson v. Palmer, 468 U.S. 517, 533 (1984). Inmate grievance

procedures can be an adequate post-deprivation remedy for the alleged destruction of

property. Id. at 536 n.15. A violation of due-process procedures exists if the post-

deprivation procedure is “unresponsive or inadequate.” Freeman v. Dep’t of Corrs.,

949 F.2d 360, 362 (10th Cir. 1991).

      Here, when Coburn was escorted to segregation, he was given an inventoried

list of his belongings that Cartwright had assembled. Coburn argues that Cartwright

                                           6
inventoried the wrong cell, yet the proper cell number is noted on the top of the form

and Coburn signed the form twice, acknowledging receipt. When Coburn then

submitted his two “Lost/Damaged/Stolen Personal Property Claim” forms, he

acknowledged that he didn’t have receipts or other evidence of ownership of the

allegedly lost and stolen property. R. at 51, 55.

      Coburn used the available inmate-grievance procedures to have his claim

submitted, investigated, and reviewed by the warden. It was denied. Coburn then

filed an appeal that was also denied. Coburn doesn’t provide evidence that the

process was unresponsive or inadequate. Thus, we find that Coburn received the full

measure of due process to which he was entitled. We agree with the district court that

a denial of an appeal does not amount to a denial of due process. We therefore find

that Coburn’s due-process claim fails.

      B.     Equal Protection

      The Fourteenth Amendment also prohibits a state from denying “any person

within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.

To state a successful claim under the Equal Protection Clause, Coburn must prove

“that [he was] treated differently from others who were similarly situated to [him].”

Brown v. Montoya, 662 F.3d 1152, 1772-73 (10th Cir. 2011) (internal quotation

marks omitted). Thus, Coburn must show that he was treated differently from other

inmates while providing “facts sufficient to overcome a presumption of government

rationality.” Brown v. Zavaras, 63 F.3d 967, 971 (10th Cir. 1995). Furthermore, pro



                                            7
se litigants “must do more than make mere conclusory statements regarding

constitutional claims.” Id. at 972.

       Here, Coburn’s brief lacks any valid argument supporting a violation of the

Equal Protection Clause of the Fourteenth Amendment. At the district court, Coburn

argued that prison officials would “pick [and] choose people who they want to help

and not help.” R. at 17. He also asserted that prison officials acted with “malice

intent” and in “reckless ways.” Id. Coburn does not provide any evidence beyond

these conclusory statements and does not allege sufficient facts supporting these

conclusions. We therefore find that Coburn has failed to state an equal-protection

claim under which relief can be granted.

III.   Frivolous Appeals Under 28 U.S.C. § 1915(g)

       Finally, 28 U.S.C. § 1915(g) prohibits prisoners from bringing civil actions or

appeals under ifp status if the prisoner has, on three or more occasions, brought an action

or appeal that was dismissed because it was “frivolous, malicious, or fails to state a claim

upon which relief may be granted, unless the prisoner is under imminent danger of

serious physical injury.” For his claims at the district court, Coburn was assessed his first

strike under § 1915(g). We now assess a second strike for this frivolous appeal. See

Jennings v. Natrona Cty. Det. Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir. 1999) (“If

we dismiss as frivolous the appeal of an action the district court dismissed under 28

U.S.C. § 1915(e)(2)(B), both dismissals count as strikes.”) (overruled on other grounds

by Coleman v. Tollefson, 135 S. Ct. 1759, 1763-64 (2015)). We urge Coburn to consider

more carefully when to file lawsuits and appeals, so that if more meritorious

                                              8
circumstances ever arise for a civil suit in federal court, ifp status will not be

automatically foreclosed for him.

                                      CONCLUSION

       For the reasons stated, we affirm the district court’s judgment granting the

appellee’s motion to dismiss and assess a second strike under 28 U.S.C. § 1915(g).

Although the district court dismissed the action under § 1915(e)(2)(B)(ii), it granted

Coburn’s application to proceed in forma pauperis, payable in partial payments. We

remind Coburn of his continuing obligation to make partial payments on his filing fee

until the entire fee has been paid. See 28 U.S.C. § 1915(b).


                                                Entered for the Court


                                                Gregory A. Phillips
                                                Circuit Judge




                                               9
