Love v. McKune , 33 F. App'x 369 ( 2002 )


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  •                                                                               F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    FEB 1 2002
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    RODGER LOVE,
    Plaintiff-Appellant,
    and
    RON BRANNING; JOSEPH MABERY;
    THOMAS OVERSTEDT,
    Plaintiffs,
    v.                                                          No. 01-3332
    DAVID R. McKUNE, Warden, Lansing                   (D.C. No. 01-CV-3301-GTV)
    Correctional Facility; and CHARLES E.                        (D. Kan.)
    SIMMONS, Secretary of Corrections,
    Topeka, Kansas,
    Defendants-Appellees.
    ORDER AND JUDGMENT*
    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
    *
    This order and judgment is not binding precedent, except under the doctrines of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.
    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
    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 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
    3
    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
    The restrictions imposed on inmates assigned to Level III are less severe than
    2
    those imposed on inmates assigned to Level I (the level at issue in Stansbury).
    4
    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
    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).
    5