                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                               OCT 9 2002
                              FOR THE TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

    BILLIE ELLIOTT,

                Plaintiff - Appellant,

    v.                                                     No. 01-3317
                                                    (D.C. No. 00-CV-3309-GTV)
    WILLIAM L. CUMMINGS, Deputy                             (D. Kansas)
    Secretary, Kansas Department of
    Corrections; DAVID R. MCKUNE,
    Warden, Kansas Department of
    Corrections; PAM GREEN, Mailroom
    Supervisor, Kansas Department of
    Corrections; TABOR MEDILL,
    Administrative Assistant, Kansas
    Department of Corrections; MICHAEL
    DAVID, Administrative Assistant, Kansas
    Department of Corrections; DUANE
    MUCKENTHALER, CM I, Kansas
    Department of Corrections; (FNU)
    (LNU), Officer D.M., Mailroom Officer,
    Kansas Department of Corrections,

                Defendants - Appellees.


                               ORDER AND JUDGMENT*


Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.



*
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       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.

       Pro se plaintiff Billie Elliott, an inmate at the Lansing Correctional Facility in

Lansing, Kansas, appeals the district court’s dismissal of his 42 U.S.C. § 1983 complaint.

We exercise jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse in part, and

remand this matter to the district court for further proceedings.

I.     Background

       Under Kan. Admin. Regs. 44-12-601(q)(3), prison officials at the Lansing

Correctional Facility are required to censor, and not permit into the facility, all

publications mailed to inmates which contain obscenity. Kan. Admin. Regs. 44-12-

313(b) defines “obscenity” as follows:

       Any material is obscene if the average person applying contemporary
       community standards would find that the material, taken as a whole: (1)
       appeals to the prurient interest; (2) has patently offensive representations or
       descriptions of (A) ultimate sex acts, normal or perverted, actual or
       simulated, including sexual intercourse or sodomy; or (B) masturbation,
       excretory functions, sadomasochistic abuse, or lewd exhibition of the
       genitals; and (3) would not be considered by a reasonable person to have
       serious literary, educational, artistic, political, or scientific value.

This definition is in accordance with the definition of obscenity articulated by the United

States Supreme Court in Miller v. California, 413 U.S. 15, 24-25 (1973).



                                              -2-
       As we understand his complaint, plaintiff is not challenging the prison officials’

authority to censor and exclude obscene materials from the prison. Instead, plaintiff

alleges that defendants have acted in an arbitrary and capricious manner in censoring non-

obscene publications and correspondence that were mailed to him at the prison; that

defendants have seized publications and correspondence without promptly notifying him

of the decisions to withhold the materials from him; that defendants have converted his

publications and correspondence for their own personal use; and that defendants have

treated him differently from other inmates because other inmates have been permitted to

receive the same or similar types of non-obscene pornographic materials. Plaintiff alleges

that defendants have thereby violated his rights under the First and Fourteenth

Amendments; he seeks to recover damages and has requested both declaratory and

injunctive relief.

       In support of the allegations in his complaint, and as evidence that he has

exhausted all available administrative remedies, plaintiff attached documentation to his

complaint which shows the following:

              1. On September 30, 1999, plaintiff submitted grievance
       No. AA20000209, complaining that employees in the prison’s mail room
       had seized and censored his copy of the December 1999 issue of Hawk
       magazine. Plaintiff claimed that the issue was not obscene and should not
       have been censored since it did not contain any photographs showing sexual
       penetration. He further claimed on appeal that another inmate at the prison
       had been permitted to receive a copy of the issue. On appeal to the
       Secretary of Corrections, a designee of the secretary determined that it was
       not necessary to take any action on plaintiff’s grievance because the
       warden’s office had advised that plaintiff was permitted to receive the issue.

                                            -3-
        2. On October 11, 1999, plaintiff submitted grievance
No. AA20000254, complaining that employees in the prison’s mail room
had seized and censored his copy of the December 1999 issue of Hawk
magazine. On appeal to the Secretary of Corrections, a designee of the
secretary determined that it was not necessary to take any action on
plaintiff’s grievance because the issue was not being censored.

        3. On October 28, 1999, plaintiff submitted a property damage
claim, No. AA0105772, seeking to recover the $10.00 cost of the December
1999 issue of Hawk magazine. On appeal to the Department of Corrections,
a designee of the department recommended disapproval of the claim
because the issue had been approved and there was no proof it had not been
sent to plaintiff.

       4. On February 7, 2000, plaintiff submitted grievance
No. AA20000599, complaining that employees in the prison’s mail room
had seized and censored his copy of the April 2000 issue of Hawk magazine
and thereby violated his rights under the First Amendment. On appeal to
the Secretary of Corrections, a designee of the secretary determined that the
issue contained photographs depicting full sexual penetration and was
properly censored as containing obscenity.

        5. On February 28, 2000, plaintiff submitted grievance
No. AA20000671, complaining that employees in the prison’s mail room
had seized and censored his copy of the May 2000 issue of Hawk magazine
and thereby violated his rights under federal law. On appeal to the
Secretary of Corrections, a designee of the secretary determined that the
issue contained photographs depicting oral sexual penetration and bodily
fluids and was properly censored as containing obscenity.

        6. In March 2000, plaintiff submitted grievance No. AA20000713,
complaining that he had ordered a back issue of the December 1999 issue of
Hawk magazine and been permitted to receive the back issue, but his copy
of the back issue was subsequently confiscated by a prison official. On
appeal to the Secretary of Corrections, a designee of the secretary
determined that the back issue was properly confiscated because it
contained obscenity in the form of photographs depicting simulated sexual
activity and discharged sexual fluids, and the prior determination that
plaintiff was permitted to receive the issue was in error. (On March 14,
2000, plaintiff submitted a similar grievance regarding the confiscation of

                                     -4-
the back issue, No. AA0000723, and it was resolved on the same grounds as
grievance No. AA0000713.)

       7. On March 10, 2000, plaintiff submitted grievance
No. AA20000724, complaining that he had received a censor notice
informing him that he could no longer receive pen pal correspondence from
an individual in Pennsylvania and that a letter from the individual had been
seized. On appeal to the Secretary of Corrections, a designee of the
secretary determined that the prison did not have a per se ban on pen pal
correspondence and that the letter had been improperly seized.

        8. On May 19, 2000, plaintiff submitted grievance
No. AA20000942, complaining that employees in the prison’s mail room
had, without providing any prior notice to him, seized letters and
photographs sent to him from a woman in Rhode Island and returned the
letters and photographs to her. Plaintiff claimed the photographs were of
women in panties or swimsuits and that none of the photographs contained
pictures depicting sexual penetration or bodily fluids. On appeal to the
Secretary of Corrections, a designee of the secretary determined that no
further action was necessary because a prison official had advised that the
mail room had not censored any of plaintiff’s mail and returned it to the
sender and plaintiff had failed to show that this was incorrect.

        9. On May 19, 2000, plaintiff submitted grievance
No. AA20000943, complaining that he had not received his copy of the
August 2000 issue of Hawk magazine or a censor notice regarding the issue.
The basis of plaintiff’s grievance is unclear, however, because he did not
claim that the employees had thereby violated his rights under federal law
or the governing state regulations regarding obscenity. On appeal to the
Secretary of Corrections, a designee of the secretary determined that the
issue was properly seized and censored because it contained photographs
depicting oral sexual penetration and bodily fluids resulting from sexual
activity and was properly censored as containing obscenity.

       10. Plaintiff filed property damage claims with the Joint Committee
on Special Claims against the State, Nos. 4781 and 4859, seeking to recover
the cost of the initial and backup issues of the December 1999 issue of
Hawk magazine. In June 2000, the committee denied the claims.



                                    -5-
(In addition to the grievances summarized above, plaintiff also attached copies of a

number of other grievances to his complaint. We need not address the additional

grievances, however, because they do not pertain to any of the claims asserted in

plaintiff’s complaint.)

       In September 2001 the district court entered a sua sponte order dismissing

plaintiff’s complaint under 28 U.S.C. § 1915(e)(2)(B). (Section 1915 applied to the

district court proceedings because the court granted plaintiff’s motion for leave to

proceed in forma pauperis.) First, under § 1915(e)(2)(B)(i), the court found that

plaintiff’s First Amendment claims were frivolous. The court based its frivolousness

determination on its review of the documents attached to plaintiff’s complaint.

According to the court, “[t]he grievance responses show adequate and reasonable bases

for the decision to censor the materials in question under the standards set out in [Kan.

Admin. Regs.] 44-12-313, and the complaint and attachments provide no support for

arbitrary and capricious rule-making.”

       Second, with respect to plaintiff’s claim that defendants converted his magazines

for their own personal use, the court found that the claim was “wholly unsupported,” and

thus frivolous under § 1915(e)(2)(B)(i). According to the court, “[t]he record suggests

only that defendants retained the material to inspect its contents. Such a review is

necessary to apply the [obscenity] standards set forth in the state regulations.”




                                             -6-
       Third, with respect to plaintiff’s claim that defendants seized publications and

correspondence without promptly notifying him of the decisions to withhold the materials

from him, the court found that plaintiff failed to exhaust fully his notice claim in the

prison grievance proceedings. Thus, the court determined that the claim was barred by 42

U.S.C. § 1997e(a).

       Finally, in accordance with § 1915(e)(2)(B)(ii), the court found that plaintiff had

failed to state an equal protection violation. According to the court, “the record suggests

only that a single issue of a magazine confiscated from plaintiff’s mail was delivered to

another inmate and that plaintiff successfully challenged a single instance of the

withholding of pen pal correspondence . . . . [T]he court finds the limited nature of the

alleged inequality is simply insufficient to support a claim of purposeful discrimination.”

II.    Analysis

       1. First Amendment Claims

       We review the district court’s dismissal under 28 U.S.C. § 1915(e)(2)(B)(i) for an

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

but see Basham v. Uphoff, No. 98-8013, 1998 WL 847689, at *4 n.2 (10th Cir. Dec. 8,

1998) (unpublished) (questioning whether de novo standard of review should apply to

dismissals under § 1915(e)(2)(B)(i) in light of the changes to the statute under the Prison

Litigation Reform Act of 1995); Lowe v. Sockey, No. 00-7109, 2002 WL 491731, at **2

(10th Cir. Apr. 2, 2002) (unpublished) (same). The standard of review is not


                                             -7-
determinative of this appeal, however, because we reach the same conclusions under

either the de novo or the abuse-of-discretion standard of review.

       Under § 1915(e)(2)(B)(i), district courts have the “unusual power to pierce the veil

of the complaint’s factual allegations and dismiss those claims whose factual contentions

are clearly baseless.” Neitzke v. Williams, 490 U.S. 319, 327 (1989) (construing former

§ 1915(d)). Nonetheless, a district court may not dismiss a complaint as frivolous

“simply because the court finds the plaintiff’s allegations unlikely.” Denton v.

Hernandez, 504 U.S. 25, 33 (1992).

       In other words, the . . . frivolousness determination, frequently made sua
       sponte before the defendant has even been asked to file an answer, cannot
       serve as a factfinding process for the resolution of disputed facts[,] . . .
       [and] a court may dismiss a claim as factually frivolous only if the facts
       alleged are clearly baseless, a category encompassing allegations that are
       fanciful, fantastic, and delusional. As those words suggest, a finding of
       factual frivolousness is appropriate when the facts alleged rise to the level
       of the irrational or the wholly incredible[.]

Id. at 32-33 (internal quotation marks and citations omitted).

       Despite these limitations, we agree with the district court that plaintiff’s First

Amendment claims concerning the April, May, and August 2000 issues of Hawk

magazine are frivolous. The documentation of the administrative proceedings regarding

these issues reflects that the prison authorities censored them because they contained

material meeting the applicable definition of obscenity. Although plaintiff made vague

and conclusory references to alleged violations of the First Amendment and federal law in

the grievances he filed concerning the April and May 2000 issues, he never challenged, or

                                              -8-
even addressed, the prison authorities’ obscenity findings with respect to the April, May,

and August 2000 issues, nor does he challenge them in his complaint. Accordingly, we

affirm the dismissal of plaintiff’s First Amendment claims with respect to the April, May,

and August 2000 issues of Hawk magazine.

       We also agree with the district court that plaintiff’s First Amendment claim

concerning the December 1999 issue of Hawk magazine is frivolous. While the

administrative history of what happened to the December 1999 issue is somewhat long

and tortured, the prison authorities ultimately determined that it too was properly

censored as obscene under the applicable regulations. Specifically, the prison authorities

determined it contained obscene materials including “photographs depicting simulated

sexual activity and discharged sexual fluids” that qualified as obscenity under the

applicable regulations. See grievance No. AA20000713 at 10. Although plaintiff has

persistently asserted that the December 1999 issue should not have been censored because

it failed to show “sexual penetration,” he has never disputed the prison authorities’

determination that the issue contained other types of obscenity. We therefore conclude

that plaintiff’s First Amendment claim with respect to the December 1999 issue of Hawk

magazine was properly dismissed as frivolous.

       We disagree, however, with the district court’s determination with respect to

plaintiff’s First Amendment claim concerning the letters and photographs that he alleges

were sent to him from the woman in Rhode Island. On the present record, there is a


                                            -9-
factual dispute concerning whether employees in the prison’s mail room censored the

letters and photographs and returned them to the sender. Thus, we must reverse the

dismissal of this aspect of plaintiff’s First Amendment claim.

       The district court also read plaintiff’s complaint as alleging an additional First

Amendment violation—that defendants interfered with his mail by applying arbitrary and

capricious rules which exceeded their authority under the governing state regulations.

The district court ruled that this claim was unexhausted because plaintiff failed to assert it

in the grievances he filed with prison officials. To the extent that the arbitrary-and-

capricious allegation raises a new claim, we agree with the district court. As we read the

complaint, however, this allegation is merely a paraphrase of the contention that the

prison officials failed to comply with governing obscenity regulations. In any event, even

if our understanding is correct, we need not further address the arbitrary-and-capricious

allegation, because it does not raise a claim independent of the claims already discussed

in this opinion.

       2. Conversion Claim

       The district court concluded that plaintiff’s conversion claim was frivolous

because “[t]he record suggests only that defendants retained the material to inspect its

contents.” Yet the record before this court does not show what the prison officials did

with the materials they seized or what ultimately happened to the materials. Accordingly,

we must reverse the dismissal of plaintiff’s conversion claim.


                                             -10-
       In reversing the dismissal of plaintiff’s conversion claim, we intend no comment

on the issue of whether the claim is even cognizable under 42 U.S.C. § 1983, an issue the

district court did not address. Likewise, assuming the conversion claim is based on state

law, we express no opinion as to whether the district court must or may exercise

supplemental jurisdiction over the claim under 28 U.S.C. § 1367.

       3. Procedural Due Process Claim

       In grievances Nos. AA20000942 and AA20000943, plaintiff claimed the prison

officials failed to notify him that they were going to destroy or return a publication and

letters with photographs that had been mailed to him at the prison. The record does not

refute these claims. Plaintiff is apparently contending that, as a matter of procedural due

process, he should have had the opportunity to request a hearing, or some other

comparable remedy, before the items were destroyed or returned.

       The district court dismissed plaintiff’s procedural due process claim under 28

U.S.C. § 1997e(a), finding that he had failed to exhaust the claim fully in the prison

grievance proceedings. We review de novo a dismissal for failure to exhaust

administrative remedies. Miller v. Menghini, 213 F.3d 1244, 1246 (10th Cir. 2000),

overruled on other grounds by Booth v. Churner, 532 U.S. 731 (2001). Our review of the

record reveals that plaintiff specifically raised the lack-of-notice issue in his initial prison

grievances and in his appeals of the denials of the grievances. See grievances




                                              -11-
Nos. AA20000942 at 2, 7 and AA20000943 at 1, 5. Thus, we must reverse the dismissal

of plaintiff’s procedural due process claim.

       4. Equal Protection Claim

       In his complaint, plaintiff alleges that defendants have treated him disparately by

allowing other inmates to receive and keep certain publications and pen pal

correspondence, while at the same time censoring the same or similar materials when they

were sent to him. The district court dismissed plaintiff’s equal protection claim under

§ 1915(e)(2)(B)(ii) for failure to state a claim.

              We review de novo the district court’s decision to dismiss a [claim]
       under § 1915(e)(2)(B)(ii) for failure to state a claim. 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. In determining whether a dismissal is
       proper, we must accept the allegations of the complaint as true and construe
       those allegations, and any reasonable inferences that might be drawn from
       them, in the light most favorable to the plaintiff. In addition, we must
       construe a pro se appellant’s complaint liberally.

Gaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir. 2002) (internal quotation marks and

citations omitted).

       The Supreme Court has “recognized successful equal protection claims brought by

a ‘class of one,’ where the plaintiff alleges that [he] has been intentionally treated

differently from others similarly situated and that there is no rational basis for the

difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per

curiam). Plaintiff, however, has failed to allege that the difference in treatment was


                                             -12-
intentional. Given our liberal construction of pro se pleadings, we might overlook this

failure as mere inartful pleading. But, as the district court noted, plaintiff’s grievances do

not “support a claim of purposeful discrimination.” On the contrary, they suggest that the

disparate treatment he allegedly received was the result of haphazard, arbitrary decision

making, not wrongful intent directed at him personally. We therefore hold that plaintiff’s

equal protection claim was properly dismissed for failure to state a claim.

       The judgment of the district court is AFFIRMED in part, REVERSED in part, and

this matter is REMANDED for further proceedings. The district court granted plaintiff’s

motion to proceed in forma pauperis on appeal, payable in partial payments. We remind

plaintiff of his obligation to continue making partial payments until the entire fee is paid.


                                                          Entered for the Court


                                                          Harris L Hartz
                                                          Circuit Judge




                                             -13-
ANDERSON, Circuit Judge, dissenting in part and concurring in part:

       I write separately because, with one small exception, I believe that all of Elliott’s

complaint was properly dismissed by the district court, pursuant to 28 U.S.C.

§ 1915(e)(2)(B), as frivolous and/or for failure to state a claim.

       First, the district court correctly determined that Elliott’s entire First Amendment

claim was frivolous. The majority agrees with that conclusion with respect to the issues

of Hawk magazine.

       The majority also concludes, however, that there is a factual dispute concerning

whether employees in the prison’s mail room censored and returned the letter and

photographs that plaintiff alleges were sent to him by the woman in Rhode Island. In his

grievance relating to this incident, Elliott alleged that the Rhode Island woman

“normal[l]y sends me photos of women in panties or swimsuits.” Grievance No.

AA20000942. He further alleged that he had not received such pictures and attached a

photocopy of a letter from the woman in which she stated that the “prison keep[s]

send[ing] me [the photos].” Id. In their response to his grievance, prison authorities

denied that they had returned any mail addressed to Elliott without following standard

procedures.

       Elliott’s averments in his complaint regarding this grievance are extremely vague

and conclusory—“Defendants failed to give Plaintiff a Notice of Mail Seizure or

Censorship when rejecting Plaintiff’s pen-pal letter(s), and then destroyed same and/or

returning same to sender as unauthorized correspondence,” Compl. ¶ 17; “some LCF
inmates are permitted to receive nude magazines while other inmates are prohibited from

receiving the same magazines as well as personal mail from free-world individuals,” id.

¶ 22; “Defendants at LCF have destroyed personal mail sent to Plaintiff by free-world

individuals, without affording him a Notice of Mail Seizure/Censorship, that is required

by law,” id. ¶ 24; “The actions of the Defendants . . . have . . . caused Plaintiff to have

publications destroyed as well as personal incoming letters without Notice of Mail

Seizure/Censorship,” id. ¶ 29; “The actions of the Defendants . . . have deliberately

destroyed his personal mail and/or returned same to sender as unauthorized

correspondence, thereby holding Plaintiff incommunicado with free-world individuals,”

id. ¶ 38. Aside from these conclusory allegations, which are not only vague but

generalized to the point of being meaningless for notice pleading purposes, the only

actual information that Elliott provides supporting those allegations is a photocopy of a

letter from the Rhode Island woman which he did in fact, evidently, receive in prison.

       Thus, on the face of his complaint, Elliott’s claims with respect to the letters and

photographs are frivolous. He alleges, on the one hand, that he did in fact receive a letter

from the woman in Rhode Island, but, on the other hand, he alleges that he did not receive

from her some other unspecified letter and/or photos and he includes her averment that all

her letters and/or photos were returned to her.

       While I recognize that a pro se litigant’s pleadings are to be read liberally and

broadly—and, at this stage, taken as true if asserted with at least a modicum of reasonable


                                              -2-
particularity—they nonetheless must contain something more than vague, conclusory,

extremely generalized, or purely speculative assertions. See Frazier v. DuBois, 922 F.2d

560, 562 n.1 (10th Cir. 1990) (to avoid dismissal for frivolousness pro se litigants must

have some minimal level of factual support for claims); Hall v. Bellmon, 935 F.2d 1106,

1110 (10th Cir. 1991) (holding that pro se plaintiff’s conclusory allegations without

supporting factual averments are insufficient to state a claim for relief). I would conclude

that Elliott’s averments relating to his failure to receive photos from the woman in Rhode

Island are properly dismissed as frivolous or for failure to state a claim.1

       Additionally, the majority holds that the district court erred when it found Elliott’s

conversion claim frivolous because “‘[t]he record suggests only that defendants retained

the material to inspect its contents.’” Maj. Op. at 10 (quoting R., Doc. 5 at 9). The

majority states that “the record before this court does not show what the prison officials

did with the materials they seized or what ultimately happened to the materials.” Id.

However, it is pure speculation to even suggest that the defendants did anything other

than simply retain the materials to inspect their contents. To infer any other motive or

conduct from the simple fact that the materials were retained for inspection in accordance

with applicable regulations is to attribute unlawful motives to prison authorities




1
 It is ironic, and harmful to his claim that, in support of his assertion that he failed to
receive a letter or letters from a particular person, he attaches a copy of a letter he did
receive from that very same person.

                                              -3-
performing their duties, without anything even approaching a particularized factual

allegation.

       Moreover, Elliott’s complaint styles his conversion claim as a violation of his

federal constitutional rights, specifically his Fifth and Fourteenth Amendment rights. To

the extent Elliott’s claim is based on an alleged procedural due process violation, the

Supreme Court “has held that neither negligent nor intentional deprivations of property

under color of state law that are random and unauthorized give rise to a § 1983 claim

when the plaintiff has an adequate state remedy.” Gillihan v. Shillinger, 872 F.2d 935,

939 (10th Cir. 1989) (citing Hudson v. Palmer, 468 U.S. 517, 533 (1984) and Parratt v.

Taylor, 451 U.S. 527, 541 (1981), overruled on other grounds by Daniels v. Williams,

474 U.S. 327, 330-31 (1986)). Either the prison grievance procedures, which Elliott

pursued, or a state law claim for conversion, which Elliott appears to pursue in this case

or presumably could pursue, provides an adequate post-deprivation remedy, such that his

federal constitutional claim is subject to dismissal. See Tillman v. Lebanon County

Correctional Facility, 221 F.3d 410, 422 (3d Cir. 2000) (holding “the plaintiff had an

adequate post-deprivation remedy in the [prison] grievance program”); Allah v. Al-

Hafeez, 208 F. Supp. 2d 520, 536-37 (E.D. Pa. 2002) (same); Feliciano v. Servicios

Correcionales, 79 F. Supp. 2d 31, 34-35 (D. Puerto Rico 2000). And, if this conversion

claim is properly characterized as a state law claim, the district court may decide, in its

discretion, to decline to exercise supplemental jurisdiction over it. See United Int’l


                                             -4-
Holdings, Inc. v. The Wharf (Holdings), Ltd., 210 F.3d 1207, 1220 (10th Cir. 2000), aff’d,

532 U.S. 588 (2001).2 I would therefore affirm the district court’s dismissal of this claim

as frivolous.

       Finally, the single issue which I agree merits reversal is the district court’s

erroneous conclusion that Elliott failed to exhaust his procedural due process claim

concerning an alleged failure to notify him before certain materials were destroyed or

returned. The record reveals that Elliott did pursue this claim through the prison’s

administrative process and it is, therefore, exhausted. I would accordingly remand this

case for the limited purpose of addressing Elliott’s procedural due process claim.




2
 In dismissing Elliott’s conversion claim as “legally frivolous” and “wholly unsupported,”
the district court implicitly declined to exercise supplemental jurisdiction over any state
law claim contained in his conversion allegation.

                                              -5-
