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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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. 

F I LED

United States Court of Appeals

Tenth Circuit

October 19, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

NATHANIEL W. ELLIBEE,

Plaintiff-Appellant,

v.

CHARLES E. SIMMONS, Warden,

El Dorado Correctional Facility,

Official and Private Capacity; LIZA

A. MENDOZA, Legal Counsel,

KDOC, Official and Private Capacity;

EDWARD R. PUGH, Kansas State

Senator, Official Capacity; JAY

SCOTT EMLER, Kansas State

Senator, Official Capacity;

TED POWERS, Kansas State

Representative, Official Capacity,

Defendants-Appellees.

No. 05-3479

(D.C. No. 03-CV-3194-JWL)

(D. Kan.)

ORDER AND JUDGMENT

*

Before TACHA, Chief Judge, O’BRIEN and McCONNELL, Circuit Judges.
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Plaintiff Nathaniel W. Ellibee, a Kansas state prisoner proceeding pro se,

appeals the district court’s disposition of his claims brought under 42 U.S.C.

§ 1983 challenging deductions from his prison income. We exercise jurisdiction

under 28 U.S.C. § 1291 and affirm. 

Background

Mr. Ellibee is serving a life sentence for murder. He has been employed

during his incarceration for which he was paid wages. From August 1996 through

May 2001, the prison deducted $3,223.09 from his inmate trust account pursuant

to a Kansas state statute that directed five percent of certain inmate wages to be

paid to a crime victims compensation fund. See Kan. Stat. Ann. § 75-5211(b). 

Prison personnel promulgated Internal Management Policy and Procedure (IMPP)

04-109 to implement the statute. IMPP 04-109 provides that five percent of a

prisoner’s gross wages shall be paid to a crime victims compensation fund. 

Mr. Ellibee contends that § 75-5211(b) does not apply to him and the deductions

violated his constitutional rights.

Mr. Ellibee filed an administrative complaint with the Joint Committee on

Special Claims against the State, as well as a prison grievance, challenging the

five-percent deductions. Defendants Pugh, Emler, and Powers, Kansas state

legislators, apparently comprised the committee that considered Mr. Ellibee’s

administrative claim. Defendant Mendoza, a Special Assistant Attorney General,

represented the state’s interests before the committee. Both the administrative
Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978). 1

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claim and the prison grievance were denied, thus satisfying the exhaustion

requirement of 42 U.S.C. § 1997e(a). 

Mr. Ellibee sued, naming as defendants the three Kansas legislators, the

assistant attorney general, and the prison warden. The district court screened the

complaint pursuant to 28 U.S.C. § 1915A(a) and (b), and dismissed all defendants

except the warden because the complaint failed to state a claim for relief against

those defendants. The court then ordered a Martinez report, and ultimately 1

granted summary judgment to the warden. The district court later denied

Mr. Ellibee’s post-judgment motion.

On appeal, Mr. Ellibee argues the five-percent deductions from his wages

violated his procedural and substantive due process rights, as well as his rights

under the Equal Protection Clause and the Fourth, Fifth, Seventh, and Eighth

Amendments to the United States Constitution. 

Standards of Review

We review de novo the district court’s order granting summary judgment,

applying the same standard as the district court. Smith v. Cummings, 445 F.3d

1254, 1258 (10th Cir. 2006). “Summary judgment is appropriate ‘if the

pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any
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material fact and that the moving party is entitled to judgment as a matter of

law.’” Id. (quoting Fed. R. Civ. P. 56(c)). We may affirm the district court’s

judgment on any grounds, even those not relied upon by the district court, so long

as the record is sufficient to permit conclusions of law. B-S Steel of Kan., Inc. v.

Tex. Indus., Inc., 439 F.3d 653, 666 n.15 (10th Cir. 2006). Mr. Ellibee is

representing himself on appeal so his pleadings will be construed liberally. See

Haines v. Kerner, 404 U.S. 519, 520-21 (1972). 

Discussion

“In order to prevail on [his] 42 U.S.C. § 1983 claim, plaintiff must

demonstrate that [he] suffered a deprivation of a federally protected right.” 

Crown Point I, LLC v. Intermountain Rural Elec. Ass’n, 319 F.3d 1211, 1216

(10th Cir. 2003). The heart of Mr. Ellibee’s claim is that the five-percent

deductions are in violation of state law, specifically Kan. Stat. Ann. § 75-5211(b),

a claim he cannot bring in a § 1983 action. Section 1983 provides a remedy only

when the plaintiff is deprived of a right or privilege under federal law; it is not a

vehicle for challenging whether a state prison regulation is authorized under state

law. Such a claim must be brought in state court. With that in mind, we consider

Mr. Ellibee’s arguments on appeal.

Procedural Due Process

Mr. Ellibee asserts that his procedural due process rights were violated

because he was not afforded a hearing before the deductions were made, and the
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post-deprivation proceedings he did receive were inadequate. To evaluate a

procedural due process claim, we ask whether the individual “possess[ed] a

protected property interest to which due process protection was applicable,” and

whether an appropriate level of process was afforded. Camuglia v. City of

Albuquerque, 448 F.3d 1214, 1219 (10th Cir. 2006). 

Mr. Ellibee contends that he was entitled to due process to establish that he

was not ordered to pay restitution, and therefore, that his wages were not subject

to the five-percent deductions for the crime victims compensation fund. But

IMPP 04-109 provides for five percent of prison wages to be paid to the victims

fund regardless of whether the inmate was ordered to pay restitution. Therefore,

there was no need for a hearing to determine if Mr. Ellibee had outstanding

obligations in the form of restitution, because the deductions properly would have

been made either way. Accordingly, assuming without deciding that he had a

protected property interest in his prison wages, we conclude that Mr. Ellibee’s

procedural due process rights were not abridged. 

Substantive Due Process

Mr. Ellibee alleges that Warden Simmons was “upset and disgruntled”

because his sentence did not include an order of restitution. Aplt. Br. at 27. As a

result, according to Mr. Ellibee, the warden implemented IMPP 04-109 to deprive

him of a portion of his prison income, a “blatant abuse of power” that violates

substantive due process. Id. at 28. 
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“Specific uses of executive power violate substantive due process only

when they ‘shock the conscience.’” Rector v. City & County of Denver, 348 F.3d

935, 948 (10th Cir. 2003) (quoting County of Sacramento v. Lewis, 523 U.S. 833,

846-47 (1998)). It does not shock the conscience to require inmates to contribute

a small part of their prison wages to a crime victims compensation fund. 

Accordingly, we deny the substantive due process claim. 

Equal Protection

For his equal protection claim, Mr. Ellibee asserts that the five-percent

deduction was applied differently to him and other medium- and maximumsecurity inmates than to minimum-security inmates. He “does not contend [he] is

either a member of a suspect class or was denied a fundamental right,” and he

does not argue that the statute or prison policy is not “rationally related to a

legitimate government purpose.” Grace United Methodist Church v. City of

Cheyenne, 451 F.3d 643, 659 (10th Cir. 2006). Consequently, he has not shown

an equal protection violation. 

Fourth Amendment

Mr. Ellibee argues on appeal that the district court refused to consider his

Fourth Amendment claim, even though the court granted him leave to amend his

complaint to include such a claim. As the district court explained, the order

granting leave to amend also ordered Mr. Ellibee to file an amended complaint,

but he never did. Therefore, the district court did not abuse its discretion when it
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later declined to permit Mr. Ellibee to bring his Fourth Amendment claim after

discovery had closed. Cf. Duncan v. Manager, Dep’t of Safety, 397 F.3d 1300,

1315 (10th Cir. 2005) (“We review a denial of a motion to supplement a

complaint for abuse of discretion.”).

Fifth Amendment

For his claim under the Fifth Amendment, Mr. Ellibee points out that part

of the five-percent deductions paid to the crime victims compensation fund were

used to fund the Crime Victims Compensation Board. Therefore, according to

him, the deductions were an unlawful taking of private property for public use.

The Fifth Amendment Takings Clause provides that “private property [shall

not] be taken for public use, without just compensation.” U.S. Const. amend. V. 

That clause is applicable to the States through the Fourteenth Amendment. Lingle

v. Chevron U.S.A. Inc., 544 U.S. 528, 536 (2005). “A party challenging

governmental action as an unconstitutional taking bears a substantial burden.” 

Pittsburg County Rural Water Dist. No. 7 v. City of McAlester, 358 F.3d 694, 718

(10th Cir. 2004) (quotation omitted). 

We assume the five-percent deductions were authorized under state law,

Kan. Stat. Ann. § 75-5211. Mr. Ellibee concedes that the state statute is

constitutional. The prison regulation, IMPP 04-109, is on the same constitutional

footing as the statute. Accordingly, we hold that Mr. Ellibee has not carried his
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substantial burden to show that the deductions, authorized by state law and prison

regulation, were an unconstitutional taking. 

Seventh Amendment

Mr. Ellibee next claims that the doctrine of collateral estoppel barred the

five-percent deductions because they were a new sentence of restitution, added

well after his original sentencing. He invokes the Seventh Amendment’s

reexamination clause, arguing that this attempt to add to his sentence was

unconstitutional. But Mr. Ellibee’s claim is not a Seventh Amendment claim;

rather, it is a repackaging of his argument that the state statute does not apply to

him. As we have held above, this claim is not cognizable in a § 1983 action. 

Eighth Amendment

Mr. Ellibee argues that the five-percent deductions violated his Eighth

Amendment right to be free from cruel and unusual punishment. The deductions

were not punishment, however. Rather, they were a state-law requirement that

if an inmate earned wages, five-percent would be deducted and paid to a crime

victims compensation fund. Again, this claim is nothing more than an argument

that the state statute does not apply to him, a claim he cannot bring under § 1983.
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Conclusion

Mr. Ellibee’s motion to strike appellee’s brief is denied. His motion

requesting this court to order the prison to submit the filing fee in full is denied as

moot. He is reminded that he is obligated to continue making partial payments

until the entire fee has been paid. The judgment of the district court is

AFFIRMED. 

Entered for the Court

Michael W. McConnell

Circuit Judge