McCall v. Johnson County Sheriff's Department , 71 F. App'x 30 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 25 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
GREGORY LEE MCCALL,
Plaintiff - Appellant,
v. No. 03-3089
(D.C. No. 02-CV-3185-GTV)
KEEFE SUPPLY COMPANY; (D. Kansas)
JOHNSON COUNTY SHERIFF’S
DEPARTMENT,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before KELLY, BRISCOE, and LUCERO, Circuit Judges. **
Plaintiff-Appellant Gregory Lee McCall, appearing pro se and in forma
pauperis, appeals from the district court’s dismissal of his civil rights action and
denial of his motion for summary judgment against Keefe Supply Company and
the Johnson County Sheriff’s Department. The district court construed Mr.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
McCall’s complaint to claim that the alleged overpricing of commissary items
inflicts cruel and unusual punishment in violation of the Eighth Amendment. The
district court denied Mr. McCall’s motion for summary judgment and dismissed
the complaint for failure to state a claim on which relief may be granted under 28
U.S.C. § 1915(e)(2)(B)(ii). Our jurisdiction arises under 28 U.S.C. § 1291, and
we affirm.
“To state a claim under 42 U.S.C. § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of the United States, and
must show that the alleged deprivation was committed by a person acting under
color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). A complaint filed
pro se must be given a liberal construction. See Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). Such a complaint also may be dismissed upon initial
review if it is frivolous or malicious, fails to state a claim upon which relief may
be granted, or seeks monetary damages against a defendant who is immune from
such relief. 28 U.S.C. § 1915(e).
Mr. McCall’s claim that his Eighth Amendment rights have been violated is
without merit. We reject Mr. McCall’s contention that he has a constitutionally
protected interest in buying stamps as cheaply as possible, as “there is simply no
legal basis for a demand that inmates be offered items for purchase at or near
cost.” French v. Butterworth, 614 F.2d 23, 25 (1st Cir. 1980); see also Wolff v.
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McDonnell, 418 U.S. 539, 556 (1974) (“[T]he fact that prisoners retain rights
under the Due Process Clause in no way implies that these rights are not subject
to restrictions imposed by the nature of the regime to which they have been
lawfully committed.”). Mr. McCall’s claims that the prices of stamps “were
outrageous and unfair” and “against the morals of society” similarly lack any
detail or merit. R. Doc. 1 at 4.
Accordingly, we AFFIRM the dismissal of Mr. McCall’s complaint for
failure to state a claim upon which relief may be granted for substantially the
same reasons given by the district court. As such, the district court’s denial of
Mr. McCall’s summary judgment motion was proper. Mr. McCall is reminded
that he remains obligated to make partial payments until the entire filing and
appellate fees have been paid.
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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