Kim v. State of Kansas, (10th Cir. 2006)

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UNITED

STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JUNG SIK KIM,

Plaintiff-Appellant,

v.

STATE OF KANSAS; (FNU) (LNU)

(1), Unknown Official of Kansas, in

their individual and official capacity;

(FNU) (LNU) (2), Unknown Agent of

Kansas, in their individual and official

capacity; KATHLEEN SEBELIUS,

Governor of Kansas and Chief

Executive Officer, in her individual

and official capacity; ROGER

WERHOLTZ, Secretary of

Corrections, in his individual and

official capacity,

Defendants-Appellees.

No. 06-3180

(D.C. No. 06-CV-3013-SAC)

(D. Kan.)

ORDER AND JUDGMENT
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Before KELLY, LUCERO, and

HARTZ, Circuit Judges.

In this pro se appeal, Plaintiff-Appellant Jung Sik Kim challenges a district

court order dismissing his civil-rights complaint for failure to state a claim. We

affirm.

Background

Mr. Kim is an inmate at the Hutchinson Correctional Facility in Kansas,

serving two concurrent sentences of 15 years to life for murder and attempted

murder. In April 2006 Mr. Kim, proceeding pro se and in forma pauperis, filed

an amended complaint in the United States District Court for the District of

Kansas, claiming various constitutional and statutory violations by the Kansas

Governor, the Kansas Secretary of Corrections, and an unknown Kansas official

and agent "responsible for the application and disbursement of grant monies." R.

Doc. 9 at 1, 2. Mr. Kim alleged that he is "a part 1 violent crime offender," id. at

2, and that "the defendants has [sic] failed to require plaintiff . . . to serve 85%

of his sentence," id. at 6. He relied on 42 U.S.C. 13704, which

conditions a

state's receipt of truth-in-sentencing grants on the state's implementation of laws

requiring that part-1 violent criminals serve no less than 85% of their sentences.

Without clearly alleging whether he has served less than or more than 85% of his

sentence, Mr. Kim claims that he is entitled to damages as well as declaratory and

injunctive relief.

Performing its 28 U.S.C. 1915A screening function, the district court

dismissed the amended complaint, ruling that (1) nothing in § 13704 requires that

a prisoner be released upon serving 85% of his sentence; (2) Mr. Kim's

complaint is essentially an unexhausted habeas corpus matter; and (3) there are

no allegations that any defendant personally participated in Mr. Kim's allegedly

illegal confinement. This appeal followed.

Discussion

We review de novo a § 1915A dismissal for failure to state a claim. See

McBride v. Deer, 240 F.3d 1287, 1289 (10th Cir. 2001). "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." Perkins v. Kansas Dep't of Corr., 165 F.3d 803,

806 (10th Cir. 1999). In conducting our review, we construe the pro se pleadings

liberally, applying a less stringent standard than formal pleadings drafted by

lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972). But "we are not

bound by conclusory allegations, unwarranted inferences, or legal conclusions"

contained in those pleadings. Hackford v. Babbitt, 14 F.3d 1457, 1465 (10th Cir.

1994).

After reviewing the record and Mr. Kim's appellate brief, we conclude that

the district court did not err in dismissing the complaint insofar as Mr. Kim is

alleging that he has served more than 85% of his sentence. See 42 U.S.C. 13704 (stating that truth-in-sentencing grants are available to states that require

part-1 violent criminals to "serve not less than 85 percent" of their sentences);

Hill v. McDonough, 126 S. Ct. 2096, 2101 (2006) ("Challenges to the lawfulness

of confinement or to particulars affecting its duration are the province of habeas

corpus." (internal quotation marks omitted)); Trujillo v. Williams, No. 04-2257,

2006 WL 2949135, at *11 (10th Cir. Oct. 17, 2006) ("In order for liability to

arise under § 1983, a defendant's direct personal responsibility for the claimed

deprivation of a constitutional right must be established."). And insofar as

Mr. Kim is alleging that he has yet to serve 85% of his sentence, we fail to see

any injury to him under federal law. Accordingly, we AFFIRM the district

court's dismissal order for substantially the reasons stated therein. We remind

Mr. Kim of his continuing obligation to make partial payments, first on his

district-court fees, and then on his appellate fees, until the fees have been paid in

full. See 28 U.S.C. 1915(b).

Entered for the Court

Harris L Hartz



Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. 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. 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.

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