Richard Eugene Mickey, Plaintiff-appellant, v. Terry Ray and Yvette White, Defendants-appellees, 62 F.3d 1428 (10th Cir. 1995)Annotate this Case
Aug. 15, 1995
Before TACHA, LOGAN and KELLY, Circuit Judges.
ORDER AND JUDGMENT1
LOGAN, Circuit Judge.
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.
Pro se plaintiff Richard Eugene Mickey brought this 42 U.S.C.1983 action alleging defendants, employees of the Tulsa County Correctional Center, violated his constitutional right to equal protection. Plaintiff claimed that defendants failed to exercise their authority to prevent him "from wandering off in a drunken state of being," and that defendants' failure to stop him from escaping from custody led to harm to "plaintiff and public." Complaint at 2. The district court dismissed plaintiff's complaint pursuant to 28 U.S.C.1915(d). Although pro se pleadings are to be construed liberally, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), our review reveals neither factual allegations nor legal theories that might arguably support a basis for relief. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Plaintiff asserts that he should have been allowed to amend his petition to avoid dismissal. Pro se litigants are entitled to "notice and an opportunity to avoid dismissal of their legitimate claims by amending and supporting their pleadings." Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). The allegations stated in his appellate brief, however--that defendants violated his Fourteenth Amendment rights by failing to properly inventory his property and allowing other inmates to steal his property--are totally different than the factual basis for his original complaint. The district court properly dismissed the complaint.
The mandate shall issue forthwith.
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470