Rodger Love, Plaintiff-Appellant
And Ron Branning; Joseph Mabery; Thomas Overstedt, Plaintiffs,
David R. McKune, Warden, Lansing Correctional Facility; and Charles E. Simmons,
Secretary of Corrections, Topeka, Kansas, Defendants-Appellees.
United States Court of Appeals, Tenth Circuit
33 Fed. Appx. 369 (10th Cir. 2002).
Feb. 1, 2002
ORDER AND JUDGMENT*
*This order and judgment is not binding precedent, except under the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.
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. Sec. 1983
action, We exercise jurisdiction pursuant to 28 U.S.C. Sec. 1291 and affirm in
part and dismiss in part.
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. (n. 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, 267 Kan. 797, 987 P.2d 1073, 1073 (Kan. 1999). Under the system incarcerated
inmates are assigned to one or 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 demonstat[e] a wiliness to participate in recommended programs.”
Stansbury v. Hannigan, 265 Kan. 404, 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.
Kansas Supreme Court previously has addressed and rejected due process
challenges to IMPP 11-10 similar to he 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 238-89. With respect to inmates’ liberty
interests in particular, the court stated:
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 constitutionally protected interest
in employment. It is true that the test for whether a restriction is a
significant hardship is not whether such restrictions 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 is equally applicable to inmates such as Love who are
assigned to Level III.(n2).
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, 112 S. Ct.
2130, 119 L. Ed. 2d 351 (1992) (outlining three elements necessary to
establishing 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
asserts that IMPP 11-101 conflicts with various Kansas administrative
regulations. We agree with the district court that Sec. 1983 provides no basis
for redressing these alleged violations of state law.(n3) See Jones v.
City & County of Denver, Colo., 854 F.2d 1206, 1209 (10th Cir.
AFFIRMED IN PART; DISMISSED IN PART. The mandate shall issue
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.
restrictions imposed on inmates assigned to Level III are less severe than
those imposed on inmates assigned to Level 1 (the level at issue in Stansbury).
also note that most of plaintiff’s arguments are foreclosed by Kansas
precedent. See Visions v. McKune, 265 Kan. 422, 960 P.2d 2222, 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, 23
Kan. App. 2d 1029, 940 P.2d 78, 83-84 (Kan. Ct. App. 1997) (rejecting argument
that policy memorandum creating “unassigned for cause” status for inmate who
refused programming did not violate Kansas administrative regulation
prohibiting penalizing inmate for refusing to participate in formal program);
Gilmore v. McKune, 22 Kan. App. 2d 167, 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