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UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
BILLIE ELLIOTT,
Plaintiff-Appellant,
v.
WILLIAM L. CUMMINGS, et al.
Defendants-Appellees.
No. 01-3317
49 Fed. Appx. 220
October 9, 2002, Filed
NOTICE: RULES OF THE TENTH CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
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)(2); 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument.
Pro se plaintiff Billie
Elliott, an inmate at the Lansing Correctional Facility in Lansing, Kansas,
appeals the district court's dismissal of his 42 U.S.C. § 1983 complaint. We
exercise jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse in
part, and remand this matter to the district court for further proceedings.
I. Background
Under Kan.
Admin. Regs. 44-12-601(q)(3), prison officials at the Lansing Correctional
Facility are required to censor, and not permit into the facility, all
publications mailed to inmates which contain obscenity. Kan. Admin. Regs.
44-12-313(b) defines "obscenity" as follows:
Any material is obscene if the average person applying contemporary
community standards would find that the material, taken as a whole: (1) appeals
to the prurient interest; (2) has patently offensive representations or
descriptions of (A) ultimate sex acts, normal or perverted, actual or simulated,
including sexual intercourse or sodomy; or (B) masturbation, excretory
functions, sadomasochistic abuse, or lewd exhibition of the genitals; and (3)
would not be considered by a reasonable person to have serious literary,
educational, artistic, political, or scientific value.
This definition is in
accordance with the definition of obscenity articulated by the United States
Supreme Court in Miller v. California, 413 U.S. 15, 24-25, 37 L. Ed. 2d 419, 93
S. Ct. 2607 (1973).
As we understand his complaint, plaintiff is not challenging the
prison officials' authority to censor and exclude obscene materials from the
prison. Instead, plaintiff alleges that defendants have acted in an arbitrary
and capricious manner in censoring non-obscene publications and correspondence
that were mailed to him at the prison; that defendants have seized publications
and correspondence without promptly notifying him of the decisions to withhold
the materials from him; that defendants have converted his publications and
correspondence for their own personal use; and that defendants have treated him
differently from other inmates because other inmates have been permitted to
receive the same or similar types of
non-obscene pornographic materials. Plaintiff alleges that defendants
have thereby violated his rights under the First and Fourteenth [*222]
Amendments; he seeks to recover damages and has requested both declaratory
and injunctive relief.
In support of the allegations in his complaint, and as evidence
that he has exhausted all available administrative remedies, plaintiff attached
documentation to his complaint which shows the following:
1. On September 30, 1999, plaintiff submitted grievance No.
AA20000209, complaining that employees in the prison's mail room had seized and
censored his copy of the December 1999 issue of Hawk magazine. Plaintiff claimed that the issue was not obscene and
should not have been censored since it did not contain any photographs showing
sexual penetration. He further claimed on appeal that another inmate at the
prison had been permitted to receive a copy of the issue. On appeal to the
Secretary of Corrections, a designee of the secretary determined that it was
not necessary to take any action on plaintiff's grievance because the warden's
office had advised that plaintiff was permitted to receive the issue.
2. On October 11, 1999, plaintiff submitted grievance No.
AA20000254, complaining that employees in the prison's mail room had seized and
censored his copy of the December 1999 issue of Hawk magazine. On appeal to the
Secretary of Corrections, a designee of the secretary determined that it was
not necessary to take any action on plaintiff's grievance because the issue was
not being censored.
3. On October 28, 1999, plaintiff submitted a property damage
claim, No. AA0105772, seeking to recover the $10.00 cost of the December 1999
issue of Hawk magazine. On appeal to the Department of Corrections, a designee
of the department recommended disapproval of the claim because the issue had
been approved and there was no proof it had not been sent to plaintiff.
4. On February 7, 2000, plaintiff submitted grievance No.
AA20000599, complaining that employees in the prison's mail room had seized and
censored his copy of the April 2000 issue of Hawk magazine and thereby violated
his rights under the First Amendment. On appeal to the Secretary of
Corrections, a designee of the secretary determined that the issue contained
photographs depicting full sexual penetration and was properly censored as
containing obscenity.
5. On February 28, 2000, plaintiff submitted grievance No.
AA20000671, complaining that employees in the prison's mail room had seized and
censored his copy of the May 2000 issue of Hawk magazine and thereby violated
his rights under federal law. On appeal to the Secretary of Corrections, a
designee of the secretary determined that the issue contained photographs
depicting oral sexual penetration and bodily fluids and was properly censored
as containing obscenity.
6. In March 2000, plaintiff submitted grievance No. AA20000713,
complaining that he had ordered a back issue of the December 1999 issue of Hawk
magazine and been permitted to receive the back issue, but his copy of the back
issue was subsequently confiscated by a prison official. On appeal to the
Secretary of Corrections, a designee of the secretary determined that the back
issue was properly confiscated because it contained obscenity in the form of
photographs depicting simulated sexual activity and discharged sexual fluids,
and the prior determination that plaintiff was permitted to receive the issue
was in error. (On March 14, 2000, plaintiff submitted a similar grievance
regarding the confiscation of the back issue, No. [*223] AA0000723, and it was resolved on the same
grounds as grievance No. AA0000713.)
7. On March 10, 2000,
plaintiff submitted grievance No. AA20000724, complaining that he had received
a censor notice informing him that he could no longer receive pen pal
correspondence from an individual in Pennsylvania and that a letter from the
individual had been seized. On appeal to the Secretary of Corrections, a
designee of the secretary determined that the prison did not have a per se ban
on pen pal correspondence and that the
letter had been improperly seized.
8. On May 19, 2000, plaintiff submitted grievance No.
AA20000942, complaining that employees in the prison's mail room had, without
providing any prior notice to him, seized letters and photographs sent to him
from a woman in Rhode Island and returned the letters and photographs to her.
Plaintiff claimed the photographs were of women in panties or swimsuits and
that none of the photographs contained pictures depicting sexual penetration or
bodily fluids. On appeal to the Secretary of Corrections, a designee of the
secretary determined that no further action was necessary because a prison
official had advised that the mail room had not censored any of plaintiff's mail and returned it to the
sender and plaintiff had failed to show that this was incorrect.
9. On May 19, 2000, plaintiff submitted grievance No.
AA20000943, complaining that he had not received his copy of the August 2000
issue of Hawk magazine or a censor notice regarding the issue. The basis of
plaintiff's grievance is unclear, however, because he did not claim that the
employees had thereby violated his rights under federal law or the governing
state regulations regarding obscenity. On appeal to the Secretary of
Corrections, a designee of the secretary determined that the issue was properly
seized and censored because it contained photographs depicting oral sexual
penetration and bodily fluids resulting from sexual activity and was properly
censored as containing obscenity.
10. Plaintiff filed property damage claims with the Joint
Committee on Special Claims against the State, Nos. 4781 and 4859, seeking to
recover the cost of the initial and backup issues of the December 1999 issue of
Hawk magazine. In June 2000, the committee denied the claims.
(In addition to the
grievances summarized above, plaintiff also attached copies of a number of other grievances to his
complaint. We need not address the additional grievances, however, because they
do not pertain to any of the claims asserted in plaintiff's complaint.)
In September 2001 the district court entered a sua sponte order
dismissing plaintiff's complaint under 28 U.S.C. § 1915(e)(2)(B). (Section 1915
applied to the district court proceedings because the court granted plaintiff's
motion for leave to proceed in forma pauperis.) First, under §
1915(e)(2)(B)(i), the court found that plaintiff's First Amendment claims were
frivolous. The court based its frivolousness determination on its review of the
documents attached to plaintiff's complaint. According to the court, "the
grievance responses show adequate and reasonable bases for the decision to
censor the materials in question under the standards set out in [Kan. Admin.
Regs.] 44-12-313, and the complaint and attachments provide no support for
arbitrary and capricious rule-making."
Second, with respect to plaintiff's claim that defendants
converted his magazines [*224] for their own personal use, the court found
that the claim was "wholly unsupported," and thus frivolous under
§ 1915(e)(2)(B)(i). According to the
court, "the record suggests only that defendants retained the material to
inspect its contents. Such a review is necessary to apply the [obscenity]
standards set forth in the state regulations."
Third, with respect to plaintiff's claim that defendants seized
publications and correspondence without promptly notifying him of the decisions
to withhold the materials from him, the court found that plaintiff failed to
exhaust fully his notice claim in the prison grievance proceedings. Thus, the
court determined that the claim was barred by 42 U.S.C. § 1997e(a).
Finally, in accordance with § 1915(e)(2)(B)(ii), the court found
that plaintiff had failed to state an equal protection violation. According to
the court, "the record suggests only that a single issue of a magazine
confiscated from plaintiff's mail was delivered to another inmate and that
plaintiff successfully challenged a single instance of the withholding of pen
pal correspondence . . . . The court finds the limited nature of the alleged
inequality is simply insufficient to support a claim of purposeful
discrimination."
II. Analysis
1. First Amendment Claims
We review the district court's dismissal under 28 U.S.C. § 1915(e)(2)(B)(i)
for an abuse of discretion. See McWilliams
v. Colorado, 121 F.3d 573, 574-75 (10th Cir. 1997); but see Basham v. Uphoff, 1998 U.S. App. Lexis
30999, No. 98-8013, 1998 WL 847689, at *4 n.2 (10th Cir. Dec. 8, 1998)
(unpublished) (questioning whether de novo standard of review should apply to
dismissals under § 1915(e)(2)(B)(i) in light of the changes to the statute
under the Prison Litigation Reform Act of 1995); Lowe v. Sockey, 36 Fed. Appx.
353, 2002 WL 491731, at **2 (10th Cir. 2002) (unpublished) (same). The standard
of review is not determinative of this appeal, however, because we reach the
same conclusions under either the de novo or the abuse-of-discretion standard
of review.
Under § 1915(e)(2)(B)(i), district courts have the "unusual
power to pierce the veil of the complaint's factual allegations and dismiss
those claims whose factual contentions are clearly baseless." Neitzke v.
Williams, 490 U.S. 319, 327, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989)
(construing former § 1915(d)). Nonetheless, a district court may not
dismiss a complaint as frivolous
"simply because the court finds the plaintiff's allegations
unlikely." Denton v. Hernandez, 504 U.S. 25, 33, 118 L. Ed. 2d 340, 112 S.
Ct. 1728 (1992).
In other words, the . . .
frivolousness determination, frequently made sua sponte before the defendant
has even been asked to file an answer, cannot serve as a factfinding process
for the resolution of disputed facts[,] . . . [and] a court may dismiss a claim
as factually frivolous only if the facts alleged are clearly baseless, a
category encompassing allegations that are fanciful, fantastic, and delusional.
As those words suggest, a finding of factual frivolousness is appropriate when
the facts alleged rise to the level of the irrational or the wholly
incredible[.]
Id. at 32-33 (internal
quotation marks and citations omitted).
Despite these limitations, we agree with the district court that
plaintiff's First Amendment claims concerning the April, May, and August 2000
issues of Hawk magazine are frivolous. The documentation of the administrative
proceedings regarding these issues reflects that the prison authorities censored
them because they [*225] contained material meeting the applicable
definition of obscenity. Although plaintiff made vague and conclusory references to alleged violations of the
First Amendment and federal law in the grievances he filed concerning the April
and May 2000 issues, he never challenged, or even addressed, the prison authorities'
obscenity findings with respect to the April, May, and August 2000 issues, nor
does he challenge them in his complaint. Accordingly, we affirm the dismissal
of plaintiff's First Amendment claims with respect to the April, May, and
August 2000 issues of Hawk magazine.
We also
agree with the district court that plaintiff's First Amendment claim concerning
the December 1999 issue of Hawk magazine is frivolous. While the administrative
history of what happened to the December 1999 issue is somewhat long and
tortured, the prison authorities ultimately determined that it too was properly
censored as obscene under the applicable regulations. Specifically, the prison
authorities determined it contained obscene materials including
"photographs depicting simulated sexual activity and discharged sexual
fluids" that qualified as obscenity under the applicable regulations. See grievance No. AA20000713 at 10. Although
plaintiff has persistently asserted that the December 1999 issue should not
have been censored because it failed to show "sexual penetration," he
has never disputed the prison authorities' determination that the issue
contained other types of obscenity. We therefore conclude that plaintiff's
First Amendment claim with respect to the December 1999 issue of Hawk magazine
was properly dismissed as frivolous.
We
disagree, however, with the district court's determination with respect to
plaintiff's First Amendment claim concerning the letters and photographs that
he alleges were sent to him from the woman in Rhode Island. On the present
record, there is a factual dispute concerning whether employees in the prison's
mail room censored the letters and photographs and returned them to the sender.
Thus, we must reverse the dismissal of this aspect of plaintiff's First
Amendment claim.
The
district court also read plaintiff's complaint as alleging an additional First
Amendment violation--that defendants interfered with his mail by applying
arbitrary and capricious rules which exceeded their authority under the governing
state regulations. The district court ruled that this claim was unexhausted
because plaintiff failed to assert it in the grievances he filed with prison
officials. To the extent
that the arbitrary-and-capricious allegation raises a new claim, we agree with
the district court. As we read the complaint, however, this allegation is
merely a paraphrase of the contention that the prison officials failed to
comply with governing obscenity regulations. In any event, even if our
understanding is correct, we need not further address the
arbitrary-and-capricious allegation, because it does not raise a claim
independent of the claims already discussed in this opinion.
2. Conversion Claim
The
district court concluded that plaintiff's conversion claim was frivolous
because "the record suggests only that defendants retained the material to
inspect its contents." Yet the record before this court does not show what
the prison officials did with the materials they seized or what ultimately
happened to the materials. Accordingly, we must reverse the dismissal of
plaintiff's conversion claim.
In
reversing the dismissal of plaintiff's conversion claim, we intend no comment
on the issue of whether the claim is even cognizable under 42 U.S.C. § 1983, an issue the district
court did not address. [*226] Likewise, assuming the conversion claim is
based on state law, we express no opinion as to whether the district court must
or may exercise supplemental jurisdiction over the claim under 28 U.S.C. §
1367.
3. Procedural Due Process Claim
In grievances Nos. AA20000942 and AA20000943, plaintiff claimed
the prison officials failed to notify him that they were going to destroy or
return a publication and letters with photographs that had been mailed to him
at the prison. The record does not refute these claims. Plaintiff is apparently
contending that, as a matter of procedural due process, he should have had the
opportunity to request a hearing, or some other comparable remedy, before the
items were destroyed or returned.
The district court dismissed plaintiff's procedural due process
claim under 42 U.S.C. § 1997e(a), finding that he had failed to exhaust the
claim fully in the prison grievance proceedings. We review de novo a dismissal
for failure to exhaust administrative remedies. Miller v. Menghini, 213 F.3d 1244, 1246 (10th Cir. 2000), overruled on other grounds by Booth v. Churner, 532 U.S. 731, 149 L. Ed.
2d 958, 121 S. Ct. 1819 (2001). Our review of the record reveals that plaintiff
specifically raised the lack-of-notice issue in his initial prison grievances
and in his appeals of the denials of the grievances. See grievances Nos.
AA20000942 at 2, 7 and AA20000943 at 1, 5. Thus, we must reverse the dismissal
of plaintiff's procedural due process claim.
4. Equal Protection Claim
In his complaint, plaintiff alleges that defendants have treated
him disparately by allowing other inmates to receive and keep certain
publications and pen pal correspondence, while at the same time censoring the
same or similar materials when they were sent to him. The district court
dismissed plaintiff's equal protection claim under § 1915(e)(2)(B)(ii) for
failure to state a claim.
We review de novo the district court's decision to dismiss a
[claim] under § 1915(e)(2)(B)(ii) for failure to state a claim. 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. In determining whether
a dismissal is proper, we must accept the allegations of the complaint as true
and construe those allegations, and any reasonable inferences that might be
drawn from them, in the light most favorable to the plaintiff. In addition, we
must construe a pro se appellant's complaint liberally.
Gaines v. Stenseng, 292 F.3d
1222, 1224 (10th Cir. 2002) (internal quotation marks and citations
omitted).
The Supreme Court has "recognized successful equal
protection claims brought by a 'class of one,' where the plaintiff alleges that
[he] has been intentionally treated differently from others similarly situated
and that there is no rational basis for the difference in treatment." Village
of Willowbrook v. Olech, 528 U.S. 562, 564, 145 L. Ed. 2d 1060, 120 S. Ct. 1073
(2000) (per curiam). Plaintiff, however, has failed to allege that the
difference in treatment was intentional. Given our liberal construction of pro
se pleadings, we might overlook this failure as mere inartful pleading. But, as
the district court noted, plaintiff's
grievances do not "support a claim of purposeful discrimination." On
the contrary, they suggest that the
disparate treatment he allegedly received was the result of haphazard,
arbitrary decision making, not wrongful
[*227] intent directed at him
personally. We therefore hold that plaintiff's equal protection claim was
properly dismissed for failure to state a claim.
The judgment of the district court is AFFIRMED in part, REVERSED
in part, and this matter is REMANDED for further proceedings. The district
court granted plaintiff's motion to proceed in forma pauperis on appeal,
payable in partial payments. We remind plaintiff of his obligation to continue
making partial payments until the entire fee is paid.
Entered for the Court
Harris L Hartz
Circuit Judge
DISSENT:
ANDERSON, Circuit Judge,
dissenting in part and concurring in part:
I write separately because, with one small exception, I believe
that all of Elliott's complaint was properly dismissed by the district court,
pursuant to 28 U.S.C. § 1915(e)(2)(B), as frivolous and/or for failure to state
a claim.
First, the district court correctly determined that Elliott's
entire First Amendment claim was frivolous. The majority agrees with that
conclusion with respect to the issues
of Hawk magazine.
The majority also concludes, however, that there is a factual
dispute concerning whether employees in the prison's mail room censored and
returned the letter and photographs that plaintiff alleges were sent to him by
the woman in Rhode Island. In his grievance relating to this incident, Elliott
alleged that the Rhode Island woman "normally sends me photos of women in
panties or swimsuits." Grievance No. AA20000942. He further alleged that
he had not received such pictures and attached a photocopy of a letter from the
woman in which she stated that the "prison keeps sending me [the
photos]." Id. In their response to his grievance, prison authorities
denied that they had returned any mail addressed to Elliott without following
standard procedures.
Elliott's averments in his complaint regarding this grievance
are extremely vague and conclusory--"Defendants failed to give Plaintiff a
Notice of Mail Seizure or Censorship when rejecting Plaintiff's pen-pal
letter(s), and then destroyed same and/or returning same to sender as
unauthorized correspondence," Compl. P 17; "some LCF inmates are
permitted to receive nude magazines while other inmates are prohibited from receiving the same
magazines as well as personal mail from free-world individuals," id. P 22;
"Defendants at LCF have destroyed personal mail sent to Plaintiff by
free-world individuals, without affording him a Notice of Mail
Seizure/Censorship, that is required by law," id. P 24; "The actions
of the Defendants . . . have . . .
caused Plaintiff to have publications destroyed as well as personal incoming
letters without Notice of Mail Seizure/Censorship," id. P 29; "The
actions of the Defendants . . . have deliberately destroyed his personal mail
and/or returned same to sender as unauthorized correspondence, thereby holding
Plaintiff incommunicado with free-world individuals," id. P 38. Aside from
these conclusory allegations, which are not only vague but generalized to the
point of being meaningless for notice pleading purposes, the only actual
information that Elliott provides supporting those allegations is a photocopy
of a letter from the Rhode Island woman which he did in fact, evidently,
receive in prison.
Thus, on the face of his complaint, Elliott's claims with
respect to the letters and photographs are frivolous. He alleges, on the
one hand, that he did in fact receive a
letter from the woman in Rhode Island, but, on the other hand, he alleges that
he did not receive from her some other unspecified letter and/or photos
and [*228] he includes her averment that all her letters and/or photos were
returned to her.
While I recognize that a pro se litigant's pleadings are to be
read liberally and broadly--and, at this stage, taken as true if asserted with
at least a modicum of reasonable particularity--they nonetheless must contain
something more than vague, conclusory, extremely generalized, or purely
speculative assertions. See Frazier v.
DuBois, 922 F.2d 560, 562 n.1 (10th Cir. 1990) (to avoid dismissal for
frivolousness pro se litigants must have some minimal level of factual support
for claims); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (holding
that pro se plaintiff's conclusory allegations without supporting factual
averments are insufficient to state a claim for relief). I would conclude that
Elliott's averments relating to his failure to receive photos from the woman in
Rhode Island are properly dismissed as frivolous or for failure to state a
claim. n1
Additionally, the majority holds that the district court erred
when it found Elliott's conversion claim frivolous because "'the record
suggests only that defendants retained the material to inspect its
contents.'" Maj. Op. at 10 (quoting R., Doc. 5 at 9). The majority states
that "the record before this court does not show what the prison officials
did with the materials they seized or what ultimately happened to the
materials." Id. However, it is pure speculation to even suggest that the
defendants did anything other than simply retain the materials to inspect their
contents. To infer any other motive or conduct from the simple fact that the
materials were retained for inspection in accordance with applicable
regulations is to attribute unlawful motives to prison authorities performing
their duties, without anything even approaching a particularized factual
allegation.
Moreover, Elliott's complaint styles his conversion claim as a
violation of his federal constitutional rights, specifically his Fifth and
Fourteenth Amendment rights. To the
extent Elliott's claim is based on an alleged procedural due process violation,
the Supreme Court "has held that neither negligent nor intentional deprivations of property under color of
state law that are random and unauthorized give rise to a § 1983 claim when the
plaintiff has an adequate state remedy." Gillihan v. Shillinger, 872 F.2d
935, 939 (10th Cir. 1989) (citing Hudson v. Palmer, 468 U.S. 517, 533, 82 L.
Ed. 2d 393, 104 S. Ct. 3194 (1984) and Parratt v. Taylor, 451 U.S. 527, 541, 68
L. Ed. 2d 420, 101 S. Ct. 1908 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 330-31,
88 L. Ed. 2d 662, 106 S. Ct. 662 (1986)). Either the prison grievance
procedures, which Elliott pursued, or a state law claim for conversion, which
Elliott appears to pursue in this case or presumably could pursue, provides an
adequate post-deprivation remedy, such that his federal constitutional claim is
subject to dismissal. See Tillman v.
Lebanon County Correctional Facility, 221 F.3d 410, 422 (3d Cir. 2000) (holding
"the plaintiff had an adequate post-deprivation remedy in the [prison]
grievance program"); Allah v. Al-Hafeez, 208 F. Supp. 2d 520, 536-37 (E.D.
Pa. 2002) (same); Feliciano v. Servicios Correccionales, 79 F. Supp. 2d 31,
34-35 (D. Puerto Rico 2000). And, if
this conversion claim is properly characterized as a state law claim, the district
court may decide, in its discretion, to decline to exercise supplemental
jurisdiction over it. See United Int'l
Holdings, Inc. v. The Wharf (Holdings), Ltd., 210 F.3d 1207, 1220 (10th
Cir. [*229] 2000), aff'd, 532 U.S. 588, 149 L. Ed. 2d 845, 121 S. Ct. 1776
(2001). n2 I would therefore affirm the district court's dismissal of this
claim as frivolous.
Finally, the single issue which I agree merits reversal is the district
court's erroneous conclusion that Elliott failed to exhaust his procedural due
process claim concerning an alleged failure to notify him before certain
materials were destroyed or returned. The record reveals that Elliott did
pursue this claim through the prison's administrative process and it is,
therefore, exhausted. I would accordingly remand this case for the limited
purpose of addressing Elliott's procedural due process claim.
* 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 10th Cir. R. 36.3.
n1 It is ironic, and harmful to his claim
that, in support of his assertion that he failed to receive a letter or letters
from a particular person, he attaches a copy of a letter he did receive from
that very same person.
n2 In dismissing Elliott's conversion claim
as "legally frivolous" and "wholly unsupported," the
district court implicitly declined to exercise supplemental jurisdiction over
any state law claim contained in his conversion allegation.
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