# Hancock v. Harpe

> District Court, W.D. Oklahoma · September 17, 2024

URL: https://www.frixlaw.com/law-library/cases/10666064

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** September 17, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10666064

## How later opinions describe it (automated extraction)

- explaining that the government is not required to compensate an owner for property which it has already acquired under the exercise of governmental authority other than the power of eminent domain
- concluding that the plaintiff prisoner had no protected property interest in The Five Percenter newspaper
- explaining that the plaintiff failed to allege any facts to show that his property was taken for public use or how the agents’ conduct violated his right to be free from unconstitutional takings
- explaining that the plaintiff had failed to allege an atypical and significant hardship under Sandin where plaintiff complained of “no access or very little access to audio/visual items” while incarcerated

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

PHILLIP HANCOCK, )
)
Plaintiff, )
)
v. ) Case No. CIV-22-00976-JD
)
STEVEN HARPE, Official Capacity as )
Director of Oklahoma Department of )
Corrections, )
)
Defendant. )

ORDER
Before the Court is United States Magistrate Judge Shon T. Erwin’s Report and
Recommendation (“R. & R.”) [Doc. No. 7], recommending that the Court dismiss
without prejudice Plaintiff’s 42 U.S.C. § 1983 Complaint [Doc. No. 1] for failure to state
a claim upon which relief may be granted. Plaintiff alleges that the seizure of his digital
media player and music downloads by Defendant violated his constitutional rights under
the Takings Clause of the Fifth Amendment and the Due Process Clause of the
Fourteenth Amendment.
I. BACKGROUND
The Court referred this action to Judge Erwin consistent with the provisions of 28
U.S.C. § 636(b)(1)(B). [Doc. No. 3]. Upon screening the Complaint under 28 U.S.C.
§ 1915A, Judge Erwin concludes that Plaintiff has failed to state a claim under the Fifth
Amendment because Plaintiff does not allege that his private property was taken for any
type of “public use.” R. & R. at 3.1 Judge Erwin also recommends that the Court reject
Plaintiff’s due process claim because Plaintiff fails to allege an “atypical and significant
hardship” resulting in a property interest protected by the Due Process Clause, and

Plaintiff had an adequate and available post-deprivation remedy, and, by his own
account, was granted some relief. See id. at 5–6.
Within the time limits authorized by the Court, Plaintiff filed objections to the R.
& R. (“Objection”) [Doc. No. 10]. Accordingly, the Court must make a de novo
determination of any portion of the R. & R. to which a specific objection is made, and

may accept, modify, or reject the recommended decision in whole or in part. 28 U.S.C.
§ 636(b)(1); see also Fed. R. Civ. P. 72(b)(3).
Upon de novo review of the issues presented, and for the reasons stated herein, the
Court adopts the R. & R. [Doc. No. 7] and dismisses without prejudice Plaintiff’s claims
for failure to state a claim.

II. LEGAL STANDARDS
By statute, the Court is required only to review de novo those portions of the R. &
R. “to which objection is made.” 28 U.S.C. § 636(b)(1)(C) (emphasis added); see also
Fed. R. Civ. P. 72(b)(3). The Court “may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge.” 28 U.S.C.

§ 636(b)(1)(C).
Plaintiff is proceeding pro se; thus, the Court must construe his pleadings

1 The Court uses CM/ECF page numbering from the top of docket filings in this
Order.
“liberally” and hold them “to a less stringent standard than formal pleadings drafted by
lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v.
Kerner, 404 U.S. 519, 520–21 (1972), and Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

However, the Court may not “assume the role of advocate for the pro se litigant.” Id. If
the Court can “reasonably read the pleadings to state a valid claim on which the plaintiff
could prevail, it should do so despite the plaintiff’s failure to cite proper legal authority,
his confusion of various legal theories, . . . or his unfamiliarity with pleading
requirements.” Id.

Nonetheless, “the court cannot take on the responsibility of serving as the
litigant’s attorney in constructing arguments and searching the record.” Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Nor can the Court “supply
additional factual allegations to round out a plaintiff’s complaint or construct a legal
theory on a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173–74 (10th

Cir. 1997) (citing Hall, 935 F.2d at 1110).
A complaint must contain “enough facts to state a claim to relief that is plausible
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009).
III. ANALYSIS
A. The Court dismisses without prejudice Plaintiff’s Fifth Amendment
Takings Clause claim.

In his Objection [Doc. No. 10], Plaintiff does not challenge Judge Erwin’s
conclusion that Plaintiff fails to state a claim under the Fifth Amendment’s Takings
Clause because he does not allege that his private property was taken for any type of
“public use.” Rather, Plaintiff asserts that Federal Rule of Civil Procedure 8(a)(2) only
requires a short and plain statement of the claim and the grounds upon which it rests.
Objection at 1. He asserts that he is now “forced to present his entire case to plausibly
contradict and refute the [R. & R.] line for line, which would make for a [voluminous]
response.” See id. at 1–2.

The Court concurs with Judge Erwin’s conclusion that Plaintiff fails to allege that
his private property was taken for “public use.” Here, Plaintiff alleges a violation of the
Takings Clause occurred because he was forced “to surrender” his digital media player
and digital music files and repurchase them from Defendant’s new vendor under a new
policy by Defendant. Compl. at 4. He asserts that this policy affected every prisoner in

Defendant’s custody possessing digital music downloads and digital media players, and
that staff informed the prisoners the “players were henceforth contraband.” See id. at 6.
He asks the Court to restore access or provide just compensation. See id. However, he
does not allege that his private property was taken for any type of “public use,” which is a
required element for stating a Takings Clause claim.

The Fifth Amendment Takings Clause provides that “private property [shall not]
be taken for public use, without just compensation.” U.S. Const. amend. V. The
Fourteenth Amendment “incorporates the Takings Clause against the States.” Sheetz v.
Cnty. of El Dorado, 601 U.S. 267, 276 (2024). Both the United States Supreme Court and

the Tenth Circuit draw a distinction between states acting pursuant to their power of
eminent domain and states acting pursuant to their police power. See, e.g., Sheetz, 601
U.S. at 274 (explaining that the “Takings Clause’s right to just compensation coexists
with the States’ police power”); Bennis v. Michigan, 516 U.S. 442, 452 (1996)
(explaining that the government is not required to compensate an owner for property

which it has already acquired under the exercise of governmental authority other than the
power of eminent domain); Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 836 (1987)
(explaining that a government agency exercising its legitimate police power is
constitutional); Lawmaster v. Ward, 125 F.3d 1341, 1351 (10th Cir. 1997) (explaining
that the plaintiff failed to allege any facts to show that his property was taken for public

use or how the agents’ conduct violated his right to be free from unconstitutional
takings); Lech v. Jackson, 791 F. App’x 711, 717 (10th Cir. 2019) (unpublished)
(equating a state’s power to take property for public use with the state’s power of eminent
domain, as opposed to its police power). A legitimate exercise of a state’s police power is
not a taking under the Fifth Amendment. Rather, to state a claim under the Fifth

Amendment, a plaintiff must allege facts to show that the state acted pursuant to its
power of eminent domain.
In Lawmaster, the plaintiff contended that federal agents’ destruction of his
property during their search of his home was “a taking without due process of law.” 125
F.3d at 1351. The Tenth Circuit concluded that the plaintiff “fail[ed] to allege any facts
showing how his property was taken for public use in violation of the Fifth Amendment,”
thereby entitling the agents to qualified immunity on the plaintiff’s Fifth Amendment

claim. See id. In Lech, the Tenth Circuit clarified that while it “did not expressly note as
much in Lawmaster, [the court had] previously equated the state’s power to ‘take[]
property for public use’ with the state’s power of eminent domain, as opposed to its
police power.” 791 F. App’x at 717 (quoting Lamm v. Volpe, 449 F.2d 1202, 1203 (10th
Cir. 1971) (“Police power should not be confused with eminent domain, in that the

former controls the use of property by the owner for the public good, authorizing its
regulation and destruction without compensation, whereas the latter takes property for
public use and compensation is given for property taken, damaged or destroyed.”)). The
Tenth Circuit further explained that “by holding that the plaintiff in Lawmaster could not
show a Fifth Amendment violation because he failed to show ‘how his property was

taken for public use,’” the court was “implicitly [holding] [that Lawmaster’s] Takings
Clause claim failed because he could not show the government acted pursuant to its
power of eminent domain, rather than pursuant to its police power.” Id. (quoting
Lawmaster, 125 F.3d at 1351); see also McKenna v. Portman, 538 F. App’x 221, 224 (3d
Cir. 2013) (unpublished) (relying in part on Lawmaster to hold that the defendants were

exercising the state’s police power when they seized the plaintiff’s property pursuant to a
search warrant, and therefore, the defendants did not engage in a “taking” under the Fifth
Amendment); Benge v. City of Tulsa, Case No. 15-CV-714-GKF-FHM, 2016 WL
10935187, at *2 (N.D. Okla. June 30, 2016) (because the plaintiff alleged “a seizure of
property by state officials pursuant to the state’s police power, he fail[ed] to state a claim
under the Takings Clause”).
Likewise, Plaintiff alleges a seizure of property by Defendant pursuant to the

state’s police power and does not allege that his private property was taken for any type
of “public use.” Thus, he fails to state a claim under the Fifth Amendment’s Takings
Clause, and the Court dismisses that claim without prejudice.
B. The Court dismisses without prejudice Plaintiff’s Fourteenth
Amendment Due Process Clause claim.

Plaintiff alleges that his due process rights were violated by Defendant’s seizure of
his digital media player and music downloads, which he had purchased. Judge Erwin
recommends that the Court reject Plaintiff’s due process claim for two reasons: (1)
because Plaintiff identifies no protected property interest at issue arising from Defendant
confiscating his digital music downloads and digital media player; and (2) Plaintiff had
an adequate and available post-deprivation remedy, and, by his own account, was granted
partial relief.
Plaintiff asserts, in his Objection, that Defendant’s “direct actions . . . created a

‘property interest’ that is connected to [Plaintiff’s] ‘Inmate Trust Fund Account.’”
Objection at 1. He contends that Defendant “facilitated and controlled every aspect of the
digital music program, from sales to delivery,” thereby withdrawing funds from
Plaintiff’s Inmate Trust Fund Account with each transaction and taking “a cut of the
profit from [each] sale.” See id.

“The Fourteenth Amendment’s Due Process Clause protects persons against
deprivations of life, liberty, or property, and those who seek to invoke its procedural
protection must establish that one of these interests is at stake.” Wilkinson v. Austin, 545
U.S. 209, 221 (2005); see also Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir. 2006)

(“A due process claim under the Fourteenth Amendment can only be maintained where
there exists a constitutionally cognizable liberty or property interest with which the state
has interfered.”) “Lawful imprisonment necessarily makes unavailable many rights and
privileges of the ordinary citizen, a ‘retraction justified by the considerations underlying
our penal system.’” Wolff v. McDonnell, 418 U.S. 539, 555 (1974) (citation omitted). The

Supreme Court has established that a protected liberty interest is at issue in a prison
setting only when an inmate is subjected to (1) conditions that “impose[] atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison life” or
(2) actions that “inevitably affect the duration of his sentence.” Sandin v. Conner, 515
U.S. 472, 484, 487 (1995). “Although Sandin addresses liberty interests, [the Tenth

Circuit] interpret[s] it to extend the same analysis to protected property interest
inquiries.” See Clark v. Wilson, 625 F.3d 686, 691 (10th Cir. 2010); see also Steffey, 461
F.3d at 1221 (explaining that the Tenth Circuit reviews property interest claims by
prisoners under Sandin’s atypical-and-significant-deprivation analysis).
Leaving aside the fact that he cannot amend his Complaint through Objection,

Plaintiff’s additional allegations in his Objection do not establish a property interest
protected by the Due Process Clause. Although Plaintiff alleges that he lawfully
purchased the digital media player and music downloads, he also alleges that a change in
Defendant’s policy rendered the items “contraband,” resulting in their “confiscation.”
Compl. at 6. A “prohibition of contraband material,” however, does “not impose an
‘atypical and significant hardship’ on [the inmate],” resulting in a property interest
protected by the Due Process Clause. See Ciempa v. Jones, 745 F. Supp. 2d 1171, 1192

(N.D. Okla. 2010) (concluding that the plaintiff prisoner had no protected property
interest in The Five Percenter newspaper). Denying or restricting a prisoner’s right to
possess certain property does not arise to a condition that is sufficiently atypical or
significant in relation to the ordinary incidents of prison life. See, e.g., Lekas v. Briley,
405 F.3d 602, 610 (7th Cir. 2005) (explaining that the plaintiff had failed to allege an

atypical and significant hardship under Sandin where plaintiff complained of “no access
or very little access to audio/visual items” while incarcerated). Plaintiff’s allegations fall
short, as he has not alleged adverse consequences beyond the general constraints of
incarceration or how losing the property has caused significant hardship or affected his
sentence.

Additionally, Plaintiff has not alleged facts to show that the procedure used to
confiscate his digital media player and digital music downloads was inadequate under the
circumstances. By his own account, he was paid “$50.00 . . . for the digital music
player,” resulting in “partial relief granted” through Defendant’s administrative grievance
procedure. Compl. at 7–8. See Hudson v. Palmer, 468 U.S. 517, 533 (1984) (recognizing

that intentional deprivation of property does not constitute a violation of the Due Process
Clause “if a meaningful postdeprivation remedy for the loss is available”); see also
Wilson v. United States, 29 F. App’x 495, 497 (10th Cir. 2002) (unpublished) (explaining
that the inmate failed to demonstrate a Fifth Amendment due process violation based on
an intentional loss of his books where he was afforded an administrative remedy).
This is true regardless of whether the inmate is successful in using the remedy. See
Robinson v. Doe, 761 F. App’x 855, 856 (10th Cir. 2019) (unpublished) (explaining that

if the inmate “had alleged the deprivation of a protected liberty interest, the [prison’s]
grievance procedure he ultimately invoked was an adequate and available postdeprivation
remedy—regardless of his success in using it,” and “there is no requirement that he
receive the remedy of his choosing”). Like the facts in the instant case, the inmate in
Robinson had alleged a violation of his due process rights “when he lost the ability to

play music on an electronic tablet he purchased from the prison canteen.” See id. at 855.
According to the plaintiff in Robinson, he had paid $1,568.12 for music on the tablet, and
when the tablet “needed adjustment . . . to continue its function,” he was not able to get it
adjusted because the prison had canceled its contract with the vendor. See id. at 856. The
Tenth Circuit dismissed the appeal as frivolous, concluding that the “circumstances

surrounding [the plaintiff’s] inability to get his music tablet adjusted do not involve such
a significant departure from normal prison conditions as to create a liberty or property
interest protected by the Fourteenth Amendment’s Due Process Clause.” See id. at 857.
Thus, for these reasons, Plaintiff fails to state a claim for a Fourteenth Amendment
Due Process Clause claim, and the Court dismisses without prejudice this claim.

IV. CONCLUSION
Upon de novo review of the issues presented, the Court ADOPTS Judge Erwin’s
Report and Recommendation [Doc. No. 7] in its entirety. Plaintiff’s claims against
Defendant Steven Harpe in his official capacity as the Director of the Oklahoma
Department of Corrections are DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED this 17th day of September 2024.
ei W. DISHMAN
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10666064. Public record. Not legal advice.