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

                           FOR THE TENTH CIRCUIT                       January 16, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
DAN HENRY TIJERINA, SR.,

             Plaintiff–Appellant,

v.                                                        No. 12-4033
                                                  (D.C. No. 2:10-CV-00529-TS)
TOM PATTERSON; DEPARTMENT OF                                (D. Utah)
CORRECTIONS MEDICAL
DEPARTMENT; CO-PAY SERVICES;
CLINICAL SERVICES BUREAU;
UTAH DEPARTMENT OF
CORRECTIONS,

             Defendants–Appellees.


                            ORDER AND JUDGMENT*


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges.



      Dan Henry Tijerina, Sr., a Utah inmate proceeding pro se, appeals the district

court’s dismissal of his civil rights complaint. Exercising jurisdiction under

28 U.S.C. § 1291, 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                            I

      In July 1995, defendant prison officials and entities began deducting from

Tijerina’s prison account co-payments for medical care pursuant to Utah Code

§ 64-13-30. Consistent with subsequent changes to § 64-13-30, the state prison

system charges a co-pay of $5.00 for medical visits and a $2.00 dispensing fee for

medications. Both § 64-13-30 and prison policy provide that an inmate may not be

denied medical care due to a lack of funds.

      In 2008, Tijerina filed grievances alleging that these medical co-pays were

unconstitutional, all of which were denied. He then filed a complaint in Utah state

court claiming that the deductions violated his due process and equal protection

rights, the Eighth Amendment’s prohibition on cruel and unusual punishment, and

the Ex Post Facto Clause. Tijerina also claimed that the co-pays violated the

unnecessary rigor clause of the Utah constitution. Defendants removed the matter to

federal district court. The district court granted defendants’ motion to dismiss the

complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim.1

                                           II

      We review de novo the district court’s dismissal of Tijerina’s complaint for

failure to state a claim under Fed. R. Civ. P. 12(b)(6). Khalik v. United Air Lines,


      1
         We previously reversed the district court’s dismissal of Tijerina’s complaint
for his alleged failure to comply with a court order, and remanded the matter for
further proceedings. See Tijerina v. Patterson, 446 F. App’x 961 (10th Cir. 2011)
(unpublished).


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671 F.3d 1188, 1190 (10th Cir. 2012). To survive such a motion, “a complaint must

contain enough allegations of fact, taken as true, to state a claim to relief that is

plausible on its face.” Id. (quotation omitted). Because Tijerina is proceeding pro se,

we construe his pleadings liberally. See Hall v. Bellmon, 935 F.2d 1106, 1110

(10th Cir. 1991).

       Tijerina first claims that § 64-13-30 violates ex post facto principles because

the conditions of his punishment have been aggravated post-conviction. The

“prohibition [on] ex post facto laws applies only to penal statutes which disadvantage

the offender affected by them.” Collins v. Youngblood, 497 U.S. 37, 41 (1990). The

Clause prohibits laws that make a previously innocent act criminal, increase the

punishment for a crime after its commission, or deprive a defendant of a defense that

was available at the time a crime was committed. Id. at 42. The district court

correctly found that the fees at issue are not attached to Tijerina’s criminal conviction

but instead are charged for medical services rendered. Section 64-13-30 was not

intended to punish, nor do its requirements transform the law into punishment.

Because the law “imposes no punishment, the Ex Post Facto Clause is not

implicated.” Cutshall v. Sundquist, 193 F.3d 466, 477 (6th Cir. 1999).

       Tijerina also argues that § 64-13-30 violates his Eighth Amendment rights

because the state is required to provide adequate medical care to inmates. A prison

official’s deliberate indifference to an inmate’s serious medical needs violates the

Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). However, because


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Tijerina has not alleged that prison officials denied him medical treatment, he cannot

state a denial-of-care claim. See Monmouth Cnty. Corr. Institutional Inmates v.

Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (stating prison officials may not condition

the provision of needed medical services on an inmate’s ability to pay). Nor does the

requirement that an inmate with adequate resources pay a small cost for his

healthcare constitute deliberate indifference. See Reynolds v. Wagner, 128 F.3d 166,

174 (3d Cir. 1997). Although a state must provide inmates with basic medical care,

see Estelle, 429 U.S. at 103, we are not aware of any authority suggesting such care

must be provided free of charge with respect to prisoners who have the ability to pay.

      Tijerina next contends that § 64-13-30, which he likens to extortion, violates

his Fourteenth Amendment right to due process. “To establish a procedural-due-

process claim, a plaintiff needs to demonstrate not only the possession of a protected

property interest but also a denial of an appropriate level of process.” Reedy v.

Werholtz, 660 F.3d 1270, 1275 (10th Cir. 2011). We have not determined whether

an inmate has a property interest in funds held in a prison account, see, e.g., Clark v.

Wilson, 625 F.3d 686, 691-92 (10th Cir. 2010), but we need not decide the question

here. Even assuming that Tijerina has a protectable property interest, we agree with

the district court that he failed to allege in his complaint that the process he received

was inadequate. Further, post-deprivation remedies may satisfy due process under

certain circumstances. Parratt v. Taylor, 451 U.S. 527, 538-39 (1981), overruled in

part on other grounds by Daniels v. Williams, 474 U.S. 327 (1986). Because it would


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be impractical for the prison to provide pre-deprivation proceedings to an inmate

prior to the deduction of medical co-pays from his account, and because requiring

such proceedings “for what are essentially ministerial matters would significantly

increase transaction costs,” Tillman v. Lebanon Cnty. Corr. Facility, 221 F.3d 410,

422 (3d Cir. 2000), we conclude that prison grievance procedures provide an

adequate post-deprivation remedy. See Williams v. Morris, 697 F.2d 1349, 1351

(10th Cir. 1982).

       Tijerina also advances an equal protection claim. He argues, in essence, that

because he requires more medical care due to his age, he is being treated differently

than younger inmates. We agree with the district court that because Tijerina did not

allege that he is in a suspect or quasi-suspect class and the fee statute is “rationally

related to a legitimate state interest,” City of Cleburne v. Cleburne Living Cntr., Inc.,

473 U.S. 432, 440 (1985), it does not violate Tijerina’s right to equal protection. The

state’s interest in recouping the costs of incarceration is rationally related to the co-

pay requirement. See Tillman, 221 F.3d at 423 (denying equal protection challenge

to state prison fee system).

       Finally, Tijerina appears to argue that the removal of his suit to federal court

denied him a right of access to state court. The authority he cites for this proposition,

which relates to exhaustion of state remedies in 28 U.S.C. § 2254 proceedings,

is not relevant to this § 1983 action. To the extent he argues there was a procedural

defect in removal to federal court, we note Tijerina failed to move to remand. See


                                           -5-
28 U.S.C. § 1447(c) (requiring a motion to remand on the basis of procedural defect

to be made within thirty days after the filing of the notice of removal).2

                                           III

      The judgment of the district court is AFFIRMED. This court has assessed

partial payments of the appellate filing fee. Tijerina’s motion to proceed on appeal

without prepayment of costs or fees is granted. We remind Tijerina that he must

continue making payments until the full balance of the appellate filing fee in this

matter is paid.

                                                 Entered for the Court


                                                 Carlos F. Lucero
                                                 Circuit Judge




      2
        Tijerina fails to address the district court’s dismissal of his state
constitutional claim under the unnecessary rigor clause in his opening brief, and he
has thus waived appellate review of that claim. See Utah Envtl. Cong. v. Bosworth,
439 F.3d 1184, 1194 n.2 (10th Cir. 2006) (“An issue mentioned in a brief on appeal,
but not addressed, is waived.”); see also Reedy, 660 F.3d at 1274 (noting that
arguments raised for the first time in a reply brief are generally waived).


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