Murphy Miles, Jr., Plaintiff-appellant, v. Lou Hesse; Kenneth M. Plotz, Defendants-appellees, 968 F.2d 20 (10th Cir. 1992)

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US Court of Appeals for the Tenth Circuit - 968 F.2d 20 (10th Cir. 1992) June 26, 1992

Before STEPHEN H. ANDERSON and BALDOCK, Circuit Judges, and CONWAY,*  District Judge.

ORDER AND JUDGMENT** 

JOHN E. CONWAY, District Judge, Sitting by Designation.

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); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Plaintiff Murphy H. Miles, Jr., a pro se prisoner, commenced a civil rights action, pursuant to 42 U.S.C. § 1983, alleging that Defendant Lou Hesse denied him constitutionally guaranteed access to a prison law library, tampered with his legal mail, and violated his due process rights when his personal property was removed. Plaintiff also alleged that Defendant Judge Kenneth M. Plotz violated his constitutional rights by failing to require Defendant Hesse to allow Plaintiff to use the prison law library.

The district court referred the action to the magistrate judge for a recommendation. Because Plaintiff has an adequate state post-deprivation remedy, see Colo.Rev.Stat. § 24-10-106(1) (b); Smith v. Maschner, 899 F.2d 940, 943 (10th Cir. 1990), the magistrate judge determined Plaintiff failed to state a claim upon which relief could be granted for property deprivation. Plaintiff sued Defendant Hesse in his official capacity only; therefore, the magistrate judge determined Defendant Hesse was immune, see Will v. Michigan Dep't of State Police, 491 U.S. 58, 70-71 (1989); Edelman v. Jordan, 415 U.S. 651, 663 (1974). The magistrate judge recommended dismissal of the claim against Defendant Plotz under 28 U.S.C. § 1915(d) because Defendant Plotz had judicial immunity for actions taken in his official capacity, see Stump v. Sparkman, 435 U.S. 349, 356-57 (1978). The magistrate judge recommended dismissal of the access to the law library claim on the ground that Plaintiff had access to alternative legal resources, see Ruark v. Solano, 928 F.2d 947, 950 (10th Cir. 1991). Finally, the magistrate judge recommended dismissal, for failure to state a claim upon which relief may be granted, of the claim alleging tampering with Plaintiff's legal mail. The district court adopted the magistrate judge's findings and conclusions and dismissed the action.

Plaintiff appeals the dismissal. After consideration of the briefs and record on appeal, we affirm for substantially the reasons stated by the magistrate judge in the Recommendation of United States Magistrate Judge, as adopted by the district court.

The judgment of the United States District Court for the District of Colorado is AFFIRMED.

The mandate shall issue forthwith.

 *

Honorable John E. Conway, District Judge, United States District Court for the District of New Mexico, sitting by designation

 **

This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3