Foster v. Nelson ( 1998 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 23 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
LEONARD FOSTER,
Plaintiff-Appellant,
v.
MIKE NELSON, Warden of El Dorado
Correctional Facility; DON E.
THOMAS, Deputy Warden of El No. 98-3069
Dorado Correctional Facility; (D.C. No. 97-3310-GTV)
KENNETH LUMAN, Assistant (D. Kan.)
Deputy Warden of El Dorado
Correctional Facility; STEVE
SHERWOOD, Attorney for Legal
Services for Prisoners, Inc.; APRIL
SEARFOSS, Mail Room Clerk,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BALDOCK, EBEL and MURPHY, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
Appellant Leonard Foster (“Foster”), a prisoner at the El Dorado
Correctional Facility in Kansas, brought a civil rights complaint against El
Dorado officials (“Appellees”) in district court under 42 U.S.C. § 1983, alleging
that his First and Fourteenth Amendment rights had been violated by Appellees’
withholding of certain commercial catalogues, featuring automotive racing parts
and airplane parts, that had been sent to Foster in the mail. The district court
dismissed Foster’s suit for failure to state a claim for relief and ordered him to
pay his full filing fee. See Foster v. Nelson, No. 97-3310-GTV, at 3 (D. Kan.
Nov. 26, 1997) (unpublished order). The district court subsequently denied
Foster’s motion for reconsideration. Foster now appeals the dismissal of his
claim and requests that this court grant him in forma pauperis status.
We review the sufficiency of a civil complaint de novo. See Roman v.
Cessna Aircraft Co., 55 F.3d 542, 543 (10th Cir. 1995). 42 U.S.C.A. § 1983(West Supp. 1998) provides for a civil cause of action against any person who,
under color of state law, deprives the plaintiff of his or her “rights, privileges, or
immunities secured by the Constitution and laws” of the United States. Foster
alleges that Appellees violated his constitutional rights by refusing to allow
catalogues to be delivered to him. However, this court has clearly stated that a
“complaint about undelivered catalogues fails to raise an issue of constitutional
magnitude.” Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990). Moreover,
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the only body of non-constitutional federal law Foster points to, for the first time
on appeal, are the United States Bureau of Prisons’ regulations governing
incoming publications to prisoners, 28 C.F.R. § 540.70 and § 540.71. This court
does not, as a general rule, consider issues raised for the first time on appeal. See
United States v. Contreras, 108 F.3d 1255, 1269 (10th Cir. 1997). However, we
can readily dispose of Foster’s claim that the defendants’ alleged violation of
these federal regulations gives rise to an injury under § 1983, because the
regulations relied upon by Foster explicitly apply only to federal penal institutions
and the inmates held there, and thus do not flesh out any federal rights, privileges,
or immunities vis-à-vis state prisoners. See 28 C.F.R. § 500.1 (1997).
Because we find, as the district court did, that Foster has failed to allege
any deprivation of a right secured by the Constitution or laws of the United
States, we AFFIRM the district court’s dismissal of Foster’s § 1983 claim, and,
because Foster’s claim is frivolous, his request for in forma pauperis status is
DENIED.
The mandate shall issue forthwith.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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