Love v. McKune, (10th Cir. 2002)

Text

---

UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

RODGER LOVE,

Plaintiff-Appellant,

and

RON BRANNING; JOSEPH MABERY;

THOMAS OVERSTEDT,

Plaintiffs,



v.

No. 01-3332

DAVID R. McKUNE, Warden, Lansing

Correctional Facility; and CHARLES E.

SIMMONS, Secretary of Corrections,

Topeka, Kansas,

Defendants-Appellees.

(D.C. No. 01-CV-3301-GTV)

(D. Kan.)

ORDER AND JUDGMENT
name="txt*">(*)

Before HENRY, BRISCOE and

MURPHY, Circuit Judges.

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.

Plaintiff Rodger Love, Jr., a Kansas state prisoner appearing pro se, appeals the

district court's dismissal of his 42 U.S.C. § 1983 action. We exercise jurisdiction

pursuant to 28 U.S.C. § 1291 and affirm in part and dismiss in part.

Love and three other inmates filed suit for declaratory and injunctive relief

alleging they and other inmates incarcerated at the Lansing Correctional Facility were

being forced to participate in what they described as an "involuntary behavioral

modification system" without an individualized showing of need. Plaintiffs alleged this

forced participation violated their Fourteenth Amendment due process rights, as well as

their First and Eighth Amendment rights. Plaintiffs further alleged the system was in

conflict with various Kansas administrative regulations. The district court dismissed the

complaint for failure to state a claim upon which relief could be granted. Only Love has

appealed.(1)

The "involuntary behavior modification system" referred to is Internal

Management Policy and Procedure (IMPP) 11-101, adopted by the Kansas Department

of Corrections in January 1996. "IMPP 11-101 implements a statewide incentive level

system which ties inmate privileges to participation in programs and good behavior."

Pool v. McKune, 987 P.2d 1073, 1076 (Kan. 1999). Under the system, incarcerated

inmates are assigned to one of four levels (Intake Level through Level III) and, in turn,

are provided with a corresponding level of privileges (e.g., television ownership,

handicrafts, participation in organizations, use of outside funds, canteen expenditures,

incentive pay, visitation). In order to be assigned to a higher level and obtain more

privileges, inmates must "generally remain[] free of offenses and demonstrat[e] a

willingness to participate in recommended programs." Stansbury v. Hannigan, 960 P.2d

227, 230 (Kan. 1998). An inmate may be assigned to a lower level, and in turn lose

privileges, for a variety of reasons, including commission of disciplinary offenses or

refusal to participate in a recommended program. Id. at 237.

The Kansas Supreme Court previously has addressed and rejected due process

challenges to IMPP 11-101 similar to the one now asserted in this action. For example,

in Stansbury, the court reviewed the restrictions imposed on inmates assigned to Level I

under IMPP 11-101 and concluded that none of those restrictions infringed upon

inmates' property or liberty interests and thus did not implicate due process. 960 P.2d at

238-39. With respect to inmates' liberty interests in particular, the court stated:

The restrictions imposed at Level I do not impose an atypical or

significant hardship on the petitioner in relation to the ordinary incidents of

prison life. While the petitioner is denied the use of certain personal

electronic equipment, this does not impose a significant hardship. Nor do

the restrictions on purchases at the canteen or the types of purchases and

personal property allowed constitute an atypical hardship. While Level I

has a restriction on visitation, the United States Supreme Court has held

that the denial of prison access to a particular visitor is well within the

terms of confinement ordinarily contemplated by a prison sentence. Also,

while Level I imposes some incentive pay restrictions, it has been held that

an inmate does not have a constitutionally protected interest in

employment. It is true that the test for whether a restriction is a significant

hardship is not whether such restriction would violate due process on its

own. However, neither the restrictions on visitation or incentive pay

constitute a significant or an atypical hardship on an inmate which would

not have been contemplated in his or her original sentence.

Id. at 238 (internal citations omitted). Although we are not bound by

Stansbury, we find

its reasoning persuasive and conclude the due process analysis engaged in by the Kansas

Supreme Court is equally applicable to inmates such as Love who are assigned to Level

III.(2)

As regards Love's claims regarding the more severe restrictions imposed on

inmates assigned to the Intake Level and Level I (the two lowest levels), Love has no

standing to challenge these restrictions given his current assignment to Level III. See

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (outlining three elements

necessary to establish standing: (1) injury in fact, (2) causal connection between injury

and conduct complained of, and (3) likelihood that injury will be redressed by a

favorable decision). Love also contends the restrictions on visitation imposed by IMPP

11-101 violate the inmates' First or Eighth Amendment rights. As with his other claims

pertaining to the Intake Level and Level I, Love has no standing to challenge visitation

restrictions which are inapplicable to Level III.

Love also asserts that IMPP 11-101 conflicts with various Kansas administrative

regulations. We agree with the district court that § 1983 provides no basis for redressing

these alleged violations of state law.(3)

See Jones v. City & County of Denver, Colo., 854

F.2d 1206, 1209 (10th Cir. 1988).

AFFIRMED IN PART; DISMISSED IN PART. The mandate shall issue

forthwith.

Entered for the Court

Mary Beck Briscoe

Circuit Judge

FOOTNOTES

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

*.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.

1. The notice of appeal was signed by Love

only. Although he contends the other

plaintiffs intended to appeal, their failure to sign the notice of appeal is fatal. See 10th

Cir. R. 3.1 ("Every notice of appeal must be signed by the appellant or by counsel for the

appellant.") Therefore, Love is the only proper appellant before this court. Id.

2. The restrictions imposed on inmates

assigned to Level III are less severe than

those imposed on inmates assigned to Level I (the level at issue in Stansbury).

3. We also note that most of plaintiff's

arguments are foreclosed by Kansas

precedent. See Vinson v. McKune, 960 P.2d 222, 225-27 (Kan. 1998)

(rejecting

argument that IMPP 11-101 is invalid because it was not correctly adopted or published

in the Kansas Register); Gilmore v. McKune, 940 P.2d 78, 83-84 (Kan. Ct. App. 1997)

(rejecting argument that policy memorandum creating "unassigned for cause" status for

inmates who refused programming did not violate Kansas administrative regulation

prohibiting penalizing inmate for refusing to participate in formal program); Gilmore v.

McKune, 915 P.2d 779, 781 (Kan. Ct. App. 1995) (interpreting K.A.R. 44-5-105(c)(1),

which provides that an inmate "shall not be penalized" for refusing to participate in a

formal program plan, as prohibiting the State from taking "formal disciplinary action"

against an inmate).

---