FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                  November 30, 2012
                    UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                 TENTH CIRCUIT                       Clerk of Court



 MYOUN L. SAWYER,

               Plaintiff-Appellant,                       No. 12-3228
          v.                                              (D. of Kan.)
 CHRISTOPHER BURKE,                             (D.C. No. 5:12-CV-03012-SAC)
 Superintendent, Larned State Hospital,
 AUSTIN DESLAURIERS, S.P.T.P.
 Clinical Director, THOMAS KINLEN,
 Supervising Psychologist, NICOLE
 TICE, Psychologist II,

               Defendants-Appellees.


                            ORDER AND JUDGMENT *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **


      Myoun Sawyer, a sex offender civilly committed to the Larned State

Hospital in Kansas, appeals the district court’s dismissal of his civil rights action.

Sawyer sought redress for the hospital’s seizure of a clock radio and stereo that


      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
had been shipped to him at the hospital. He claims the seizure violated a number

of his constitutional rights. The district court granted Sawyer leave to proceed in

forma pauperis and then sua sponte dismissed the action pursuant to 28 U.S.C.

§ 1915(e)(2)(B)(ii), concluding that the complaint failed to state a claim upon

which relief could be granted. Sawyer now challenges this ruling on appeal.

         Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court.

                                   I. Background

         The facts underlying Sawyer’s original complaint concern an order of

hygiene products, food, and electronic equipment shipped to Sawyer’s address at

the Larned State Hospital. At the time the shipment was received, Sawyer was

classified as having Security Level Zero, a security level that accords patients

fewer privileges at Larned. Pursuant to hospital policy, because Sawyer was at

this more restrictive security level, he did not receive the following items: a

television, a DVD player, an MP3 stereo, an alarm clock, and a black video cable.

These items were returned to the company that had shipped them in the first

place.

         Sawyer contests the hospital’s decision to deny him two items from the

shipment: the alarm-clock radio and the stereo. Sawyer cites to a portion of the

resident handbook for Larned that permits a resident at Security Level Zero to

possess a radio, CD player, or tape player.



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      Relying on the handbook, Sawyer alleges the return of these two items

violated hospital policy and therefore his constitutional rights. Specifically,

Sawyer alleges these decisions by the hospital violated his right to procedural due

process under the Fifth and Fourteenth Amendments. He also alleges the

decisions were motivated by racial animus and therefore violate his right to equal

protection under the Fourteenth Amendment.

      We address the basis for dismissing each of these claims in turn.

                                   II. Analysis

      In a case proceeding in forma pauperis, § 1915(e)(2)(B)(ii) provides that

“the court shall dismiss the case at any time if the court determines that . . . the

action or appeal . . . fails to state a claim upon which relief can be granted.” This

language parallels that of Federal Rule of Civil Procedure 12(b)(6). We have

traditionally applied a de novo standard of review to dismissals made under Rule

12(b)(6). And we apply the same standard in the context of a dismissal under §

1915(e)(2)(B)(ii). See Perkins v. Kansas Dep’t of Corr., 

, 806 (10th

Cir. 1999).

      Dismissal of a pro se complaint for failure to state a claim is proper only

where it is obvious that the plaintiff cannot prevail on the facts he has alleged,

and it would be futile to give him an opportunity to amend. See Whitney v. New

Mexico, 

, 1173 (10th Cir. 1997). In determining whether dismissal

is proper, we must accept the allegations of the complaint as true and we must

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construe those allegations, and any reasonable inferences that might be drawn

from them, in the light most favorable to the plaintiff. See Gee v. Pacheco, 

, 1183 (10th Cir. 2010). At the same time, to survive a motion to

dismiss “the plaintiff must provide more than labels and conclusions or a

formulaic recitation of the elements of a cause of action, and factual allegations

must be enough to raise a right to relief above the speculative level.” 

Corp. v. Twombly, 

, 555 (2007)) (alterations and internal

quotations omitted). Finally, as is the case here, we must liberally construe the

allegations in a pro se complaint. See Haines v. Kerner, 

, 520

(1972).

      All of the allegations from Sawyer’s complaint fail because they do not

state claims upon which relief can be granted. As an initial matter, we note that

Sawyer appears to have misinterpreted the scope of the Fifth Amendment. He has

only alleged constitutional violations committed by agents of the State of Kansas,

not the federal government. Therefore, the Due Process Clause of the Fifth

Amendment is not implicated. At the same time, his Fifth Amendment procedural

due process claim alleges the same facts and violations as his Fourteenth

Amendment due process claim, and we therefore construe both claims to be one in

the same.

      Nonetheless, Sawyer’s procedural due process claim under the Fourteenth

Amendment also fails. On this claim, “the Due Process Clause is simply not

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implicated by a negligent act of an official causing unintended loss of or injury to

life, liberty, or property.” Daniels v. Williams, 

, 328 (1986). Yet

the record reflects that the return of the clock radio and stereo to the manufacturer

was at most a negligent oversight by the hospital. Further, contrary to the

conclusory allegations made by Sawyer, there is no evidence that the return of

these items was motivated by malice, a claim over which we might have

jurisdiction.

      Sawyer’s equal protection claim also fails. On this claim, Sawyer “must

plead and prove that the defendant[s] acted with discriminatory purpose.”

Ashcroft v. Iqbal, 

, 676 (2009) (citing Washington v. Davis, 

, 240 (1976)) (other citation omitted). Yet Sawyer has offered nothing more

than the unsubstantiated assertion that because he is African American, the

decision to withhold the clock radio and stereo was motivated by racial animus.

To the contrary, the record reflects that the decision to deny Sawyer these items

was motivated by a hospital policy on the different items permitted for patients

with different security levels. Sawyer points to no evidence to support his

allegation that the policy has been selectively enforced against him. In sum, the

district court properly dismissed the equal protection claim.




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                       III. Conclusion

Based on the foregoing analysis, we affirm the district court.

                                ENTERED FOR THE COURT

                                Timothy M. Tymkovich
                                Circuit Judge




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