Opinion

IN THE SUPREME COURT, STATE OF WYOMING

2016 WY 5

OCTOBER TERM, A.D. 2015

January 15, 2016

JOHN LESLIE CHAPMAN,

Appellant

(Plaintiff),

v.

WYOMING DEPARTMENT OF CORRECTIONS, S-15-0112

Wyoming Medium Correctional Institution,

ROBERT O. LAMPERT, Director, STEVE

HARGETT, Warden, KELLI DOLAN, CPL Property

Officer,

Appellees

(Defendants).

Appeal from the District Court of Goshen County

The Honorable Keith Kautz, Judge

Representing Appellant:

Pro se.

Representing Appellees:

Peter K. Michael, Attorney General; John D. Rossetti, Deputy Attorney General; Jackson

M. Engels, Assistant Attorney General.

Before BURKE, C.J., and HILL, DAVIS, and FOX, JJ., and SKAR, D.J.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers

are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming

82002, of any typographical or other formal errors so that correction may be made before final publication in

the permanent volume.

SKAR, District Judge.

[¶1] Appellant, John Chapman, seeks review of an order of the district court disposing

of his civil claims through the granting of summary judgment in favor of

Defendants/Appellees, Wyoming Department of Corrections, Robert O. Lampert, Steve

Hargett, and Kelli Dolan, CPL, who will collectively be referred to as “DOC.” We

affirm.

ISSUES

[¶2] Chapman raises six issues which the DOC rephrased to more closely reflect

Chapman’s arguments and to be consistent with the civil actions resolved by the district

court. We restate the issues as follows:

I. Did the district court abuse its discretion by allowing the

DOC to file a second motion for summary judgment

following the partial denial of its first motion?

II. Based on the undisputed facts of this case, did the pre-

and postdeprivation remedy provided to Chapman satisfy his

right to procedural due process?

III. Are the Government officials who are the subject of

Chapman’s claims entitled to qualified immunity?

IV. Did Chapman comply with the jurisdictional

requirements of the Wyoming Governmental Claims Act,

Wyo. Stat. Ann. § 1-39-113?

V. Does the doctrine of sovereign immunity bar Chapman’s

claims against the State of Wyoming, two state agencies, and

three state officials?

FACTS AND PROCEEDINGS

[¶3] On July 24, 2013, Chapman filed a 42 U.S.C. § 1983 civil rights action in the

district court for Goshen County asserting four constitutional claims based on the First,

Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution, and one state law

claim of negligence. Appellant’s claims allege that while he was an inmate in the state of

Wyoming, under the supervision and control of the DOC, he was deprived of his personal

property when penitentiary staff confiscated three televisions at different times; that the

DOC violated his right to due process and that the deprivation of property caused him

injury for which he is entitled to damages; and that he was wrongfully deprived of his

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property through the negligence of the DOC. Appellees provide the following timeline of

events leading up to, and forming the basis of, Chapman’s allegations:

1. June 4, 2010 – While an inmate at the Wyoming State

Penitentiary (WSP), Chapman purchased a Clear Tunes

Digital television (referred to hereafter as Television 1) and a

remote controller from the prison commissary.

2. December 2, 2011 – Chapman was transferred to

Wyoming Medium Correctional Institution (WMCI).

Chapman’s authorized property was also transferred to

WMCI.

3. February 22, 2012 – Chapman was transferred to

administrative segregation pending an institutional

investigation. While Chapman was segregated, his property

was inventoried and stored in the prison’s property room.

When his segregation was lifted two days later, he was

returned to his housing unit and his personal property was

returned to him. Television 1 and its remote was not one of

the personal property items returned to Chapman when he

was returned to his housing unit on February 24, 2012.

4. Chapman alleges Television 1 was lost or taken from

him while he was in administrative segregation. Chapman

also alleges that he discussed the missing television with Cpl.

Kelli Dolan who informed Chapman that “as soon as they had

time they would look for it and return it to him once it was

found.” Appellant claims he also spoke about the missing

television with Warden Steve Hargett.

5. March 16, 2012 – Television 1 (and the remote control)

was found in another inmate’s property in violation of

WDOC Policy #3.006 and confiscated as a result.

6. Although he alleges that he discussed the “lost” or

“taken” television with Cpl. Dolan and Warden Hargett,

Chapman did not file a formal inmate grievance or grievance

appeal related to Television 1.

7. Chapman alleges that he was never notified that his

television was found in the possession of another inmate and

confiscated as a result. Chapman argues that the failure of the

DOC to return Television 1 to him when they discovered it in

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the possession of another inmate deprived him of due process.

Throughout his appellate brief, Chapman’s argument is:

“[W]hen Appellees discovered their mistake and found

Appellant’s property they confiscated it and never notified

him nor was he given a copy of the confiscation form in

March, 2012. This also deprived Appellant of his grievance

process, there was no written notice or an opportunity to

defend himself before depriving him and destroying his

property. This is what violated the due process clause of the

Fourteenth Amendment and therefore violated Appellant’s

rights.” (Emphasis in original.)

8. June 18, 2012 – A second television was found in

Chapman’s cell – Television 2. The inmate identification

number on Television 2 was rubbed off and a new number

scratched in. Television 2 was deemed “altered property” in

violation of Department Policy and Procedure #3.006 and

confiscated. It is unclear if this is the same television that

was previously confiscated from another inmate (Television

1). Chapman argues it is the same television and that it was

“re-confiscated” by DOC on June 18, 2012.

9. June 25, 2012 – Chapman filed an “Inmate Request

Form” arguing that Television 2 should be returned to him.

10. June 27, 2012 – Property Control Officer Kelly Dolan

responded to Chapman in writing refusing to return

Television 2 because it had been altered and was now

contraband.

11. July 3, 2012 – Chapman filed grievance number 12-

0131 pertaining to Television 2, requesting that it be returned

to him or “the money put back on [his] books.”

12. July 11, 2012 – Grievance Manager, Sergeant Michael

McManis, conducted an examination of Television 2 and

confirmed that the inmate ID number was rubbed off and a

new number was scratched in. Sergeant McManis found that

Television 2 had been altered in violation of policy and had

been appropriately confiscated as contraband.

13. July 17, 2012 – Sergeant McManis responded to

Chapman in writing, informing him “there should be no

resolution or remedy granted” because “the number [on the

3

television] has been rubbed off and a new number was

scratched in.”

14. July 18, 2012 – Chapman appealed the grievance to

Warden Steve Hargett of the Wyoming Medium Correctional

Institution.

15. July 27, 2012 – After reviewing all of the information

concerning Chapman’s grievance, including Television 2

itself, Warden Hargett responded to Chapman in writing

informing him that Grievance #12-0131 had been found to be

without merit and denied. Warden Hargett informed

Chapman that if he was dissatisfied, he could appeal the

decision to Department Director Robert Lampert according to

the instructions in Policy and Procedure #3.100.

16. August 13, 2012 – After reviewing the file and contents

therein regarding Television 2, Director Lampert dismissed

grievance #12-0131 and responded to Chapman in writing

that “[i]f the [television] set was yours, it has been altered,

which is now contraband and prevents it from being in the

housing area. … The television confiscated from you did not

have a sticker on it, and a new number was scratched into the

set confiscated. … The television that was confiscated was

not properly marked [and] it is considered contraband. As the

television was either altered or a different television than the

one you had upon arrival at WMCI, I find your grievance is

without merit and is hereby dismissed.”

17. November 1, 2012 – Television 2 (confiscated on June

18, 2012) was destroyed pursuant to Department Policy and

Procedure #3.006 and #3.013.

18. January 3, 2013 – A property inventory completed prior

to Chapman’s transfer to the Wyoming State Penitentiary

indicated that there was no television in Chapman’s property.

19. January 4, 2013 – A second inventory after the transfer

also indicated that there was no television in Chapman’s

property.

20. January 6, 2013 – Chapman sent an Inmate

Communication Form indicating that he wanted Television 2

returned to him.

4

21. January 17, 2013 – Chapman’s recorded telephone call

to his mother indicates that he did not want to spend $250 on

another television because he knows where he can get one for

$50 and indicates an address associated with another inmate

as the place to send the money.

22. March 4, 2013 – Chapman sent an Inmate

Communication Form indicating that he had another

television – Television 3, but he needed a new seal for this

third television and needed to have it added to his property

matrix. Records do not indicate that Chapman legally

purchased Television 3.

23. March 7, 2013 – A State Penitentiary Package Receipt,

provided by Chapman, indicates the replacement state seal for

Television 3, #43335 (although this is not a proper use of a

package receipt).

24. June 20, 2013 – Chapman’s property inventory prior to

his transfer back to the Medium Correctional Institution

indicated that he had another television – Television 3.

25. June 26, 2013- The property inventory after the transfer

back to the Medium Correctional Institution also indicated

that Chapman had a “third” television – Television 3.

26. June 26, 2013 – Television 3 was confiscated because

Chapman could not provide proof of ownership.

27. July 14, 2013 – Chapman filed grievance #13-0105,

complaining that Television 3 (and a Sony Walkman) was

confiscated, and he asked for their return.

28. On July 24, 2013, Chapman filed a civil rights lawsuit

against the Department, alleging constitutional violations

based on the confiscations of his televisions.

29. July 25, 2013 – Grievance Manager, Sergeant Shawn

Hobson, responded to Chapman’s grievance explaining in

writing there was no record of Chapman purchasing

Television 3.

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30. July 27, 2013 – Chapman completed the first step of the

appeal process by appealing the grievance manager’s decision

regarding Television 3 to the Warden.

31. August 15, 2013 – The appeal regarding Television 3

was denied by Warden Steve Hargett since Chapman was

unable to provide proof of purchase for the third television.

32. August 16, 2013 – Chapman appealed Warden Hargett’s

decision regarding Television 3, which completed the

grievance procedure.

33. September 9, 2013 – Director Lampert denied the

appeal, concluding that this television (Television 3) “was

derived from a transaction with another inmate that is not

allowed” since there was no indication that Chapman had

purchased Television 3.

[¶4] The DOC filed a motion for summary judgment on all of Chapman’s claims.

After a hearing on June 9, 2014, the district court issued its Order Denying in Part and

Granting in Part Defendants’ Motion for Summary Judgment, in which it disposed of all

but the due process claim based on the Fourteenth Amendment to the U.S. Constitution

and the state law negligence claim. In denying summary judgment, the district court

found that a narrow factual issue remained concerning Chapman’s Fourteenth

Amendment and state law negligence claims, ruling: “[The Department asserts] that

[Chapman] did not timely file the necessary grievance regarding the television taken from

him. However [Chapman] asserts that he did file a timely grievance.”

[¶5] After the district court issued its order on the DOC’s motion for summary

judgment, the DOC located the grievance Chapman filed regarding the second

confiscated television. The Department acknowledged Chapman’s grievance was timely

filed and, with leave from the district court, filed additional arguments in support of

summary judgment on Chapman’s remaining claims. After review of the DOC’s and

Chapman’s additional arguments, the district court, no longer finding genuine issues of

material fact, granted the DOC’s motion for summary judgment on the Fourteenth

Amendment and state law negligence claims on December 15, 2014. Chapman timely

filed his appeal of the Order Granting Defendants’ Second Motion for Summary

Judgment.

STANDARD OF REVIEW

[¶6] In our review of the district court’s Order Granting Defendants’ Second Motion

for Summary Judgment,

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[W]e employ the same standards and use the same

materials as were employed and used by the trial court.

We examine the record from the vantage point most

favorable to the party who opposed the motion, and we

give that party the benefit of all favorable inferences

that may fairly be drawn from the record. Summary

judgment is appropriate only when no genuine issue as

to any material fact exists and the prevailing party is

entitled to have a judgment as a matter of law. A

genuine issue of material fact exists when a disputed

fact, if it were proven, would have the effect of

establishing or refuting an essential element of the

cause of action or defense which the parties have

asserted. We review a grant of summary judgment

deciding a question of law de novo and afford no

deference to the trial court’s ruling.

Platt v. Creighton, 2007 WY 18, ¶ 7, 150 P.3d 1194, 1198

(Wyo. 2007) (quoting Black v. William Insulation, Co., 2006

WY 106, ¶ 7, 141 P.3d 123, 126–27 (Wyo. 2006)).

We will affirm a grant of summary judgment if it can

be sustained on any legal ground appearing in the record.

Lever v. Community First Bancshares, Inc., 989 P.2d 634,

637 (Wyo. 1999) (quoting Duncan v. Town of Jackson, 903

P.2d 548, 551 (Wyo. 1995)).

Cosco v. Lampert, 2010 WY 52, ¶ 8, 229 P.3d 962, 966 (Wyo. 2010) (quoting Sheaffer v.

State ex rel. Univ. of Wyo., 2009 WY 19, ¶¶ 12–13, 202 P.3d 1030, 1037 (Wyo. 2009)).

[¶7] A different standard of review applies to Chapman’s first argument that the district

court should not have granted the DOC’s request to file a second motion for summary

judgment and will be addressed in the discussion below.

DISCUSSION

I. Did the district court abuse its discretion by allowing the DOC to file a second

motion for summary judgment following the partial denial of its first motion?

[¶8] In its June 26, 2014, order granting in part and denying in part the DOC’s motion

for summary judgment, the district court disposed of all but two of Chapman’s claims:

the Fourteenth Amendment due process claim, and the state law negligence claim. After

the district court issued its order, the DOC discovered additional material facts and made

a request for additional argument on the issue of summary judgment. The issue of

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material fact that preserved Chapman’s due process and state law negligence claims was

whether he filed a grievance with respect to a television that was confiscated from him on

June 18, 2012; Chapman claimed he did file a grievance and the DOC alleged that he did

not file a grievance. After finding the grievance Chapman filed on July 3, 2012

concerning the June 18, 2012 confiscation of a television, and the associated documents,

the DOC argued to the district court that no factual disputes remained and the matter may

be determined as a matter of law. After a hearing, the district court found that “the

development of changed evidence from the time that the court previously considered the

motion on summary judgment is sufficient to permit a further motion for summary

judgment.”

[¶9] Chapman argues on appeal that the DOC should not have been given a second

chance to revisit “the issues already addressed” by the district court. Chapman also

objects to the fact that the district court ruled on the DOC’s second motion for summary

judgment without a hearing, arguing that this “denied Appellant the right to defend

himself.” We review the district court’s decision to allow additional argument on

summary judgment using an abuse of discretion standard:

The abuse-of-discretion standard of review reaches the

question of the reasonableness of the trial court’s

choice. Griswold v. State, 2001 WY 14, ¶ 7, 17 P.3d

728, 731 (Wyo. 2001). Judicial discretion is a

composite of many things, among which are

conclusions drawn from objective criteria; it means

exercising sound judgment with regard to what is right

under the circumstances and without doing so

arbitrarily and capriciously. Id.

Garnett v. State, 2014 WY 80, ¶ 6, 327 P.3d 749, 751 (Wyo.

2014).

Harris v. State, 2015 WY 50, ¶ 8, 346 P.3d 944, 945 (Wyo. 2015) (quotation marks

omitted). The purpose of a summary judgment proceeding is to determine whether any

real issue exists requiring a full trial; it allows a court to dispose of issues in the early

stages of litigation, thus permitting an end to unfounded claims and avoiding the expense

to litigants and the judiciary of a full-fledged trial. Greaser v. Williams, 703 P.2d 327,

337 (Wyo. 1985), citing Bluejacket v. Carney, 550 P.2d 494, 496 (Wyo. 1976). Rule

56(a), W.R.C.P. states:

(a) For claimant.—A party seeking to recover upon a claim,

counterclaim, or cross-claim or to obtain a declaratory

judgment may, at any time after the expiration of 20 days

from the commencement of the action or after service of a

motion for summary judgment by the adverse party, move

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with or without supporting affidavits for a summary judgment

in the party’s favor upon all or any part thereof.

[¶10] We have held that this language is broad enough to permit a party to file a second

motion for summary judgment following the denial of his first motion for procedural

reasons, and that this reading of the rule is consistent with the purpose of a summary

judgment procedure. Greaser, 703 P.2d at 337. In this case, new evidence not

previously considered was brought to the court’s attention. Additional briefing in light of

the new evidence was not prejudicial to Chapman. Chapman was also given an

opportunity to provide additional briefing, and the district court considered all arguments

prior to making a determination. We find and conclude that the district court did not

abuse its discretion in allowing a second motion for summary judgment.

II. Based on the undisputed facts of this case, did the pre- and postdeprivation

remedy provided to Chapman satisfy his right to procedural due process?

[¶11] Chapman argues that his due process rights were violated when the DOC

confiscated at least three televisions: Television 1 was confiscated on March 16, 2012,

from another inmate’s cell; this television is the only one for which Chapman had a

receipt proving his ownership. Television 1 was found, however, in another inmate’s cell

in violation of WDOC Policy and Procedure #3.006. Television 1 was therefore

considered contraband and was confiscated. Televisions 2 and 3 were confiscated from

Chapman because he was not able to provide proof of ownership, again in violation of

policy. The loss of this property, however, does not establish a due process claim. See

Parratt v. Taylor, 451 U.S. 527, 541, 101 S.Ct. 1908, 1916, 68 L.Ed.2d 420 (1981),

partially overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.Ct.

662, 88 L.Ed.2d 662 (1986), and Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82

L.Ed.2d 393 (1984).

A. Adequate postdeprivation remedy.

[¶12] The main focus of Chapman’s due process claim is on the confiscation of

Television 1. Chapman argues that he was intentionally deprived of his property through

an act unauthorized by prison policy (i.e. a state procedure). Specifically, Chapman

alleges that when he returned to his cell after being in segregation in February 2012, he

was told by Cpl. Dolan that her department did not have his television and that if they

found it, they would return it to him. When the television was eventually found in

another inmate’s cell, it was confiscated as contraband since Chapman’s number was on

the television. Chapman alleges this form was not provided to him, nor was he told by

prison officials that his television was found, and this is the basis of Chapman’s

argument. WDOC Inmate Communication and Grievance Policy #3.100 does, in fact,

provide a procedure to follow and a remedy for inmates with any kind of complaint.

Chapman, however, did not take advantage of this process made available to him, and

therefore does not establish a due process claim.

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[¶13] In Parratt v. Taylor, a state prisoner sued prison officials under 42 U.S.C. § 1983

alleging that their negligent loss of a hobby kit he ordered from a mail-order catalog

deprived him of property without due process of law, in violation of the Fourteenth

Amendment. In that case, the Supreme Court rejected the proposition that the Fourteenth

Amendment right to due process “at a meaningful time and in a meaningful manner”

always requires the State to provide a hearing prior to the initial deprivation of property.

“This rejection is based in part on the impracticability in some cases of providing any

preseizure hearing under a state-authorized procedure, and the assumption that at some

time a full and meaningful hearing will be available.” Parratt, 451 U.S. at 540-41, 101

S.Ct. at 1915-16. The Court in Parratt held that the Due Process Clause of the

Fourteenth Amendment is not violated when a state employee negligently deprives an

individual of property, provided that the state makes available a meaningful

postdeprivation remedy. In other words, when there is an adequate and meaningful

remedy available to an inmate deprived of his property, a due process claim is not

established.

[¶14] In Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, the respondent/inmate alleged

under 42 U.S.C. § 1983 that petitioner/prison employee intentionally destroyed certain of

respondent’s personal property during a shakedown search of the respondent’s cell. The

Supreme Court extended their holding in Parratt:

If negligent deprivations of property do not violate the Due

Process Clause because predeprivation process is

impracticable, it follows that intentional deprivations do not

violate that Clause provided, of course, that adequate state

postdeprivation remedies are available. Accordingly, we hold

that an unauthorized intentional deprivation of property by a

state employee 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. For intentional, as for

negligent deprivations of property by state employees, the

state’s action is not complete until and unless it provides or

refuses to provide a suitable postdeprivation remedy.

Hudson, 468 U.S. at 533, 104 S.Ct. at 3204. In this case, the confiscation of Television 1

was authorized and intentional pursuant to WDOC Policy #3.006. Chapman argues DOC

staff mixed up his property with another inmate’s property; that when they found the

television in another inmate’s cell, they did not tell Chapman; and that they never gave

him an opportunity to respond to the confiscation of the television. Even if, however, the

confiscation was unauthorized, Chapman did, in fact, have a meaningful postdeprivation

remedy available to him in the form of the DOC’s grievance procedure.

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[¶15] The DOC’s Inmate Communication and Grievance Procedure provides inmates a

meaningful postdeprivation remedy. This policy establishes uniform guidelines and

procedures for communication between DOC staff and inmates, and it establishes an

administrative process to resolve inmate grievances without involvement of the courts.

Among the list of issues that can be grieved using the Inmate Grievance Procedure is “[a]

dispute concerning other incident(s) occurring within the correctional facility that directly

and personally affected the inmate who is filing the grievance, including the loss or

destruction of the inmate’s approved personal property … .” Among the available

remedies is restoration or restitution for personal property. The policy includes specific

requirements for written responses to inmates who file grievances throughout the

grievance process, and there are specific timelines that must be met throughout the

process. The procedure for filing grievances was the same for all televisions confiscated

from Chapman: An inmate must first attempt to resolve an issue informally through

communication directly with the appropriate staff member; if that attempt is

unsuccessful, the inmate may file a grievance form that is submitted to the grievance

manager. Inmates have the opportunity to appeal a grievance manager’s decision to the

Warden, as well as an opportunity to appeal a Warden’s decision to the Director of the

Wyoming Department of Corrections. The Director’s decision on an inmate grievance

appeal is final, and is not subject to further review. Finally, Section IV., A., 1. of Policy

#3.100 states that the “Chief Executive Officers (CEOs) shall ensure that every inmate

and every Department of Corrections employee has ready access to this policy and

procedure regarding the inmate communication and grievance system.”

[¶16] It is clear that Chapman understood the grievance process as he did file grievances

pursuant to WDOC policy after the confiscations of Televisions 2 and 3. Chapman had

an opportunity to file a grievance when he was released from segregation in February

2012, and was informed by Cpl. Dolan that property control did not have his television.

Even though there was a process and remedy available to him, Chapman did not take

advantage of it. Chapman did not file a grievance; he therefore failed to exhaust the

remedies available to him. The Prison Litigation Reform Act of 19951 requires inmates

to exhaust administrative remedies available to them before they can file a civil rights

action pursuant to 42 U.S.C. § 1983. See Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct.

983, 988, 152 L.Ed.2d 12 (2002).2

1

Prison Litigation Reform Act of 1995 (PLRA), 110 Stat. 1321–71, as amended, 42 U.S.C. § 1997e(a)

(1994 ed., Supp. V).

2

The current exhaustion provision differs markedly from its predecessor.

Once within the discretion of the district court, exhaustion in cases

covered by § 1997e(a) is now mandatory. All available remedies must

now be exhausted; those remedies need not meet federal standards, nor

must they be plain, speedy, and effective. Even when the prisoner seeks

relief not available in grievance proceedings, notably money damages,

exhaustion is a prerequisite to suit. And unlike the previous provision,

which encompassed only § 1983 suits, exhaustion is now required for all

actions ... brought with respect to prison conditions, whether under §

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[¶17] We agree with the district court that there was no procedural due process violation

concerning the confiscation of Television 1 because Chapman had an adequate

postdeprivation remedy through pursuing the inmate grievance procedure.

B. Adequate predeprivation remedy.

[¶18] With regard to Television 2, Chapman in effect argues that he was deprived of his

property without due process as the result of an established state procedure, specifically

WDOC Policy and Procedure #3.013, Searches. Certainly there are instances where

“[p]ost-deprivation remedies alone are insufficient where the deprivation of property

results from an established state procedure.” Griffin v. Hickenlooper, 549 Fed. Appx.

823, 828 (10th Cir. 2013). See also Logan v. Zimmerman Brush Co., 455 U.S. 422, 436,

102 S.Ct. 1148, 1158, 71 L.Ed.2d 265 (1982).3 In Griffin, an inmate in the Colorado state

prison system, complained that the corrections policy of disposition of inmate property

was unconstitutional as it applied to him, based on the confiscation and disposal of his

personal property. Id., 549 Fed. Appx. at 827-28. Nevertheless, the Tenth Circuit Court

of Appeals affirmed the district court’s dismissal of this claim because the inmate was

provided with both adequate predeprivation and postdeprivation remedies. Id. at 828.

See also Jackson v. Central N.M. Corr. Facility, No. 91-2234, 1992 WL 236921, *2 (10th

Cir. Sept. 21, 1992) (unpublished opinion) (“any procedural due process to which

Plaintiff was entitled was provided by the post-deprivation grievance procedure available

within the prison system”) and Cosco, 229 P.3d 962 (where this Court ruled that an

inmate is not denied due process on a claim that he was wrongly deprived of his personal

property where a grievance procedure affords the required process).

1983 or any other Federal law. Thus federal prisoners suing under

Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct.

1999, 29 L.Ed.2d 619 (1971), must first exhaust inmate grievance

procedures just as state prisoners must exhaust administrative processes

prior to instituting a § 1983 suit.

Porter, 534 U.S. at 524, 122 S.Ct. at 988 (internal citations and quotation marks omitted).

3

Unlike the complainant in Parratt, the complainant in Logan was not challenging the state’s error, but

the “established state procedure” that destroyed his entitlement without according him proper procedural

safeguards. Logan, 455 U.S. 422, 102 S.Ct. 1148. In Logan, Appellant was discharged from his job

because a physical disability purportedly made it impossible for him to do his job. The Supreme Court

held that (1) the employee’s right to use the Fair Employment Practices Act’s adjudicatory procedures is a

property right protected by the due process clause, (2) the employee had a right to adjudication by the

state’s Fair Employment Practices Commission, and (3) availability of a post-termination tort action

pursuant to the state’s claims act would not provide the employee due process as the claims act does not

provide for reinstatement of an employee’s job. Thus, even a successful suit will not entirely vindicate an

employee.

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[¶19] Chapman, like the inmate in the Griffin case, was also provided with adequate pre-

and postdeprivation remedies through the WDOC’s Inmate Communication and

Grievance Policy #3.100. When Television 2 was confiscated on June 18, 2012,

Chapman filed a grievance on July 3, 2012. Chapman’s grievance was ultimately

determined to be without merit and dismissed on August 13, 2012, in the final appeal

process to Director Lampert. Television 2 was not disposed of until November 2012,

well after Chapman completed the grievance process. Chapman completed the grievance

process after Television 3 was confiscated with the same result; his appeal was

determined to be without merit and dismissed on September 9, 2013. “The fact that

Plaintiff did not receive the result he desired from the grievance procedure does not mean

that he was denied due process.” Jackson, 1992 WL 236921, at *2 (unpublished

opinion). Given the availability of both adequate predeprivation and postdeprivation

remedies, Chapman suffered no deprivation of his procedural due process rights.

Summary judgment on this issue was appropriately granted.

III. Are the Government officials who are the subject of Chapman’s claims entitled

to qualified immunity?

[¶20] Chapman named three Department of Corrections employees, in their official and

individual capacities, as Defendants in the district court, two of whom fall within the

definition of a “government official:” Robert O. Lampert, Director of the Department of

Corrections; and Steve Hargett, Warden at the Wyoming Medium Correctional

Institution. Although not considered a “government official,” Cpl. Kelli Dolan, Property

Officer at the Wyoming Medium Correctional Institution, is also a named Defendant.

Appellees argue Director Lampert and Warden Hargett have qualified immunity from

civil damages as government officials. Chapman argues that “[t]he Eleventh Amendment

does not forbid suing state officials for damages in their individual capacities, and for

declaratory or injunctive relief in their official capacities.” Aside from arguing simply

that these Appellees “are not entitled to qualified immunity,” Chapman does not provide

a cogent argument in support of his contention.

[¶21] We have said about the doctrine of qualified immunity:

Qualified immunity generally shields government officials

performing discretionary functions from liability for civil

damages when their conduct “‘does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.’” Park County v.

Cooney, 845 P.2d 346, 351 (Wyo. 1992), cert. denied, 510

U.S. 813, 114 S.Ct. 60, 126 L.Ed.2d 30 (1993) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, [818], 102 S.Ct. 2727,

2738, 73 L.Ed.2d 396 (1982)) (emphasis in original).

Qualified immunity “‘gives ample room for mistaken

judgments’ by protecting ‘all but the plainly incompetent or

13

those who knowingly violate the law.’” Hunter v. Bryant, 502

U.S. 224, [229], 112 S.Ct. 534, [537], 116 L.Ed.2d 589

(1991) (quoting Malley v. Briggs, 475 U.S. 335, 341, 343,

106 S.Ct. 1092, 1096-97, 89 L.Ed.2d 271 (1986)).

Abell v. Dewey, 870 P.2d 363, 367 (Wyo. 1994).

Qualified immunity balances two important interests—the

need to hold public officials accountable when they exercise

power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform their

duties reasonably. The protection of qualified immunity

applies regardless of whether the government official’s error

is “a mistake of law, a mistake of fact, or a mistake based on

mixed questions of law and fact.”

Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009).

There are two prongs to the qualified immunity analysis: A court must decide (1)

whether the facts that a plaintiff has alleged or shown make out a violation of a

constitutional right, and (2) whether the right at issue was “clearly established” at the

time of defendant’s alleged misconduct. Qualified immunity is applicable unless the

official’s conduct violated a clearly established constitutional right. Id., 555 U.S. at 232,

129 S.Ct. at 815-16. The standard for a “clearly established right” is defined as follows:

To be clearly established, a right must be sufficiently clear

“that every ‘reasonable official would [have understood] that

what he is doing violates that right.’” [Ashcroft v. al-Kidd,

563 U.S. 731], 131 S.Ct. [2074, 2083, 179 L.Ed.2d 1149

(2011)] (quoting Anderson v. Creighton, 483 U.S. 635, 640,

107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)). In other words,

“existing precedent must have placed the statutory or

constitutional question beyond debate.” 563 U.S.[ at ––––,

131 S.Ct. at 2083]. This “clearly established” standard

protects the balance between vindication of constitutional

rights and government officials’ effective performance of

their duties by ensuring that officials can “‘reasonably ...

anticipate when their conduct may give rise to liability for

damages.’” Anderson, supra, at 639, 107 S.Ct. 3034 (quoting

Davis v. Scherer, 468 U.S. 183, 195, 104 S.Ct. 3012, 82

L.Ed.2d 139 (1984)).

Reichle v. Howards, ___ U.S. ___, ___, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012).

14

[¶22] Certainly, Chapman’s right to procedural due process either pre- or

postdeprivation is clearly established. Chapman fails, however, to set out any facts

establishing a violation of that right. Director Lampert’s and Warden Hargett’s only role

was reviewing Chapman’s grievances and making a determination based on the

information presented to them pursuant to Policy #3.100. Where officials have not

caused or personally participated in an alleged constitutional violation, they are properly

dismissed as parties in an inmate’s § 1983 civil action. Pettigrew v. Zavaras, 574 Fed.

Appx. 801, 808 (10th Cir. 2014) (unpublished). Merely participating in the grievance

procedure by denying the inmate’s request does not constitute sufficient involvement to

establish personal participation under 42 U.S.C. § 1983. See Larson v. Meek, 240 Fed.

Appx. 777, 780 (10th Cir. 2007) (unpublished). The facts are undisputed and Chapman’s

allegations against Director Lampert and Warden Hargett are insufficient to state a cause

of action. Summary judgment was therefore appropriate.

[¶23] Again, using the analysis for qualified immunity above, Chapman fails to show

there is clearly established law that would put Cpl. Dolan on notice that her actions would

violate Chapman’s procedural due process rights. As the district court noted in its

summary judgment order, the property policy in place at the Wyoming State Penitentiary

and the Wyoming Medium Correctional Institution is the type of administrative policy

that courts have “accorded wide-ranging deference” to prison officials, so as to “preserve

internal order and discipline and to maintain institutional security.” Bell v. Wolfish, 441

U.S. 520, 547, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979). Courts will give prison

officials deference in policy matters regarding the safety and security of the prisons. See

also Pell v. Procunier, 417 U.S. 817, 827, 94 S.Ct. 2800, 2806, 41 L.Ed.2d 495 (1974).

[¶24] Cpl. Kelli Dolan is not considered a government official, yet Chapman names her

in her official and individual capacity in his civil action. Although Chapman does not

explicitly make a respondeat superior argument, Director Lampert and Warden Hargett

are Cpl. Dolan’s superiors, so we will address this issue simply to say “there is no

concept of supervisor strict liability under section 1983.” Harris v. Greer, 750 F.2d 617,

618 (7th Cir. 1984). See also Schultz v. Baumgart, 738 F.2d 231, 238–39 (7th Cir. 1984);

Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983); cf. Monell v. New York City

Department of Social Services, 436 U.S. 658, 691–94, 98 S.Ct. 2018, 2036–37, 56

L.Ed.2d 611 (1978).

Section 1983 creates a cause of action based upon personal

liability and predicated upon fault. An individual cannot be

held liable in a § 1983 action unless he caused or participated

in an alleged constitutional deprivation. McBride v. Soos, 679

F.2d 1223, 1227 (7th Cir. 1982); Adams v. Pate, 445 F.2d

105, 107 (7th Cir. 1971). Pursuant to this requirement, courts

have rejected § 1983 claims based upon respondeat superior

theory of liability. See Polk Co. v. Dodson, 454 U.S. 312,

325, 102 S.Ct. 445, 453, 70 L.Ed.2d 509 (1981); Iskander v.

15

Village of Forest Park, 690 F.2d 126, 128 (7th Cir. 1982)

(cases cited therein). Without a showing of direct

responsibility for the improper action, liability will not lie

against a supervisory official. A causal connection, or an

affirmative link, between the misconduct complained of and

the official sued is necessary. Rizzo v. Goode, 423 U.S. 362,

371, 96 S.Ct. 598, 604, 46 L.Ed.2d 561 (1976).

Wolf-Lillie, 699 F.2d at 869 (emphasis in original). There are no facts or evidence to

support a claim based on respondeat superior. We hold these named Appellees are

entitled to qualified immunity and that summary judgment was appropriate.

IV. Did Chapman comply with the jurisdictional requirements of the Wyoming

Governmental Claims Act, Wyo. Stat. Ann. § 1-39-113?

[¶25] Chapman’s state law negligence claim is against a governmental entity, and “[t]his

Court has long held that a party seeking to bring an action against a governmental entity

must first comply with the constitutional and statutory requirements by presenting a

notice of claim to the entity.” Harmon v. Star Valley Med. Ctr., 2014 WY 90, ¶ 18, 331

P.3d 1174, 1178 (Wyo. 2014) citing Brown v. City of Casper, 2011 WY 35, ¶ 19, 248

P.3d 1136, 1141 (Wyo. 2011). Wyo. Stat. Ann. § 1-39-113(d) reads:

(d) In any action under this act, the complaint shall state:

(i) That the claim required under subsection (c) of this

section was filed in accordance with this section;

(ii) The date the claim under subsection (c) of this

section was filed;

(iii) That the claim was in compliance with the

signature and certification requirements of article 16,

section 7 of the Wyoming Constitution.

[¶26] While failure to file a claim strictly complying with the WGCA does not deprive a

district court of subject matter jurisdiction, the WGCA’s requirements are substantive and

a plaintiff’s failure to strictly comply may require dismissal of his claim. See Harmon, ¶

49, 331 P.3d at 1188.4

4

It is important to note here that even though failure to strictly comply with the requirements of the

WGCA may require dismissal of a state law claim, that failure would not bar a § 1983 claim:

[T]he Supreme Court has stated that “[c]onduct by persons acting under

color of state law which is wrongful under 42 U.S.C. § 1983 … cannot

be immunized by state law.” Howlett ex rel. Howlett v. Rose, 496 U.S.

16

[¶27] The parties do not dispute that Chapman failed to submit a notice of claim as

required by the WGCA. Chapman’s state law negligence claim was therefore

appropriately dismissed in summary judgment.

V. Does the doctrine of sovereign immunity bar Chapman’s claims against the State

of Wyoming, two state agencies, and three state officials?

[¶28] Suits against state officials in their official capacity should be treated as suits

against the State. Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 3105, 87

L.Ed.2d 114 (1985); Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 361, 116 L.Ed.2d 301

(1991). Chapman brought suit against the Wyoming Department of Corrections, the

Wyoming Medium Correctional Institution, and against Director Lampert, Warden

Hargett, and Cpl. Dolan in their official capacities as well as individually. “[N]either a

State nor its officials acting in their official capacities are ‘persons’ under § 1983.” Will

v. Michigan Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45

(1989). As such, there is no cause of action for damages under 42 U.S.C. § 1983.

Stidham v. Peace Officer Standards and Training, 265 F.3d 1144, 1156 (10th Cir. 2001).

[¶29] Unless a state consents to a suit brought by her own citizens or citizens of another

state, the state is entitled to Eleventh Amendment immunity. Edelman v. Jordan, 415

U.S. 651, 663, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974). The Wyoming Department

of Corrections, the Wyoming State Penitentiary, and the Wyoming Medium Correctional

Institution are all part of the State of Wyoming. Wyo. Stat. Ann. §§ 9-2-2012 and 25-2-

104. The State of Wyoming has not waived its Eleventh Amendment immunity.

Chapman, therefore, has no claim for damages against Appellees in their official

capacities, and summary judgment in Defendants’/Appellees’ favor was appropriate.

356, [376], 110 S.Ct. 2430, 110 L.Ed.2d 332 (1990) (quoting Martinez v.

California, 444 U.S. 277, 284 n.8, 100 S.Ct. 553, 62 L.Ed.2d 481

(1980)). The Tenth Circuit has very plainly held this statement to mean

that “[a] § 1983 claim may be available, even though a state remedy is

foreclosed by the Oklahoma Governmental Tort Claims Act.” Tiemann v.

Tul–Ctr., Inc., 18 F.3d 851, 853 (10th Cir. 1994); see also Phillips v.

Wiseman, 857 P.2d 50, 52 (Okla. 1993) (“[T]he [Oklahoma]

Governmental Tort Claims Act and 42 U.S.C. § 1983 provide a ‘double-

barreled system,’ and ... escaping liability under one does not necessarily

mean that a party also escapes liability under the other.”). Indeed, a

cursory review of prior rulings from this Court would have demonstrated

to OMUSA that Romero’s § 1983 was not foreclosed under the GTCA.

See, e.g., Poore v. Glanz, 11–CV–0797–[CVE]–TLW, 2012 WL

1536933 (N.D. Okla. Apr. 30, 2012) (“plaintiff’s lack of compliance

with the notice requirements of the GTCA is not a defense to a § 1983

claim.”).

Romero v. City of Miami, 8 F. Supp. 3d 1321, 1327-28 (N.D. Okla. 2014).

17

CONCLUSION

[¶30] The district court’s summary judgment order which is the subject of this appeal is

affirmed in all respects.

18