United States District Court, D. Colorado
PHILIP A. BRIMMER, District Judge.
This matter is before the Court on the Recommendation of United States Magistrate Judge [Docket No. 52] (the "Recommendation"). The magistrate judge recommends that the Court dismiss the amended complaint [Docket No. 15] for failure to state a claim. On October 10, 2013, plaintiff Alexander Stanley filed timely objections [Docket No. 57] to the Recommendation. Therefore, the Court will "determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed.R.Civ.P. 72(b)(3).
Plaintiff is an inmate at the Crowley County Correctional Facility, a prison operated by the private company Correctional Corporation of America ("CCA") under contract with the Colorado Department of Corrections ("CDOC"). Defendant is an employee of CCA. In light of plaintiff's pro se status, the Court reviews his filings liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 n. 3 (10th Cir. 1991). The underlying facts of this case are set forth in the Recommendation and will not be recited here.
I. STANDARD OF REVIEW
Dismissal of a claim under Rule 12(b)(6) is appropriate where the plaintiff fails to state a claim upon which relief can be granted. For a complaint to state a claim, it must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. (8)(a)(2). Rule 8(a)'s "short and plain statement" language requires that a plaintiff allege enough factual matter that, taken as true, makes his "claim to relief... plausible on its face." Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This "plausibility" standard requires that relief must plausibly follow from the facts alleged, not that the facts themselves be plausible. Bryson, 534 F.3d at 1286. In considering a plaintiff's claims, the Court "must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff." Alvarado v. KOB-TV, LLC, 493 F.3d 1210, 1215 (10th Cir. 2007).
A. Procedural Due Process
Plaintiff objects to the Recommendation insofar as it recommends dismissal of his claim pursuant to 42 U.S.C. § 1983 for deprivation of property without due process of law. Docket No. 57 at 2-3. Plaintiff alleges that defendant violated his right to due process by confiscating $200 from his CDOC inmate account on the basis that it was obtained through bartering without first providing formal notice and a hearing on the bartering charge. Docket No. 15 at 23, ¶ 111.
The Court "examine[s] procedural due process questions in two steps: the first asks whether there exists a liberty or property interest which has been interfered with by the [government]; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient." Kentucky Dep't of Corr. v. Thompson, 490 U.S. 454, 460 (1989) (internal citations omitted).
1. Protected Property Interest
To determine whether a protected property interest is at stake, courts in this Circuit ask whether the "prison condition complained of presents the type of atypical, significant deprivation in which a State might conceivably create a liberty [or property] interest.'" Cosco v. Uphoff, 195 F.3d 1221, 1224 (10th Cir. 1999) (quoting Sandin v. Connor, 515 U.S. 472, 486 (1995)). This inquiry focuses on the "nature of the deprivation" as opposed to the "language of a particular [state] regulation." Sandin, 515 U.S. at 481.
Plaintiff argues that he has a protected right, based on the CDOC's Administrative Regulations, to an inmate account; to receive deposits in that account from friends and family outside the prison; and to receive formal notice and a hearing before the CDOC removes money from that account on a charge of bartering. Docket No. 57 at 13, ¶ 37 (citing CDOC Administrative Regulations Nos. 150-01, 200-02, and 850-06).
Before Sandin, a number of circuits, including this one, held that prisoners had a protected property interest in non-contraband funds held in inmate accounts. See Burks v. Pate, 119 F.Appx. 447, 450 (4th Cir. 2005) ("A prisoner has a protected property interest in his prison trust account."); Vance v. Barrett, 345 F.3d 1083, 1088 n.6 (9th Cir. 2003) ("we have little trouble concluding that [plaintiff] has  a protected right to accrued interest on his inmate accounts"); Hampton v. Hobbs, 106 F.3d 1281, 1287 (6th Cir. 1997) ("[p]risoners do have a protected interest in their money" stored in prisoner trust accounts); Mahers v. Halford, 76 F.3d 951 (8th Cir. 1996) (prisoners have an interest in money received from outside sources); Gillihan v. Shillinger, 872 F.2d 935, 938 (10th Cir. 1989) ("To the extent that [the funds in plaintiff's prison account] constitute monies received from friends and family outside the prison, plaintiff clearly has a property interest in them."); Campbell v. Miller, 787 F.2d 217, 222 (7th Cir. 1986) ("It is beyond dispute that Campbell has a property interest in the funds on deposit in his prison account.").
Following Sandin, however, the Tenth Circuit called into question its holding that prisoners have a protected interest in their prison accounts. In Steffey v. Orman, 461 F.3d 1218, 1221-23 (10th Cir. 2006), the court held that a prisoner did not have a protected interest in funds received from the mother of another inmate because the funds were contraband in violation of Oklahoma State Penitentiary rules. In explaining why Gillihan did not apply, the court suggested that Gillihan 's holding with respect to a prisoner's interest in his funds was dicta "because it is not apparent from the decision that any monies from outside sources were at issue in that case." Id. at 1223 n.4. The court further noted that " Gillihan was decided before this court held in Cosco, 195 F.3d at 1224, that the property-interest due-process rights of prisoners are to be determined based on the nature of the deprivation ...