*After examining appellant’s brief and the 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) and 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Order and Judgment is not binding precedent, except under the doctrines of law of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 L E D

United States Court of Appeals

Tenth Circuit

JUN 7 2004

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JIM C. ELLIOTT,

Plaintiff - Appellant,

v.

CHARLES E. SIMMONS, Secretary

of Corrections, KDOC; LOUIS E.

BRUCE, Warden, Hutchinson

Correctional Facility; IRLENE DICK,

Business Manager Trustee, Hutchinson

Correctional Facility; LINDA

TOMPSON, Accounting Clerk,

Hutchinson Correctional Facility; D

GOFF, Prison Health Services,

Hutchinson Correctional Facility; and

RON WARTTS, SATP, Mental Health

Services, Hutchinson Correctional

Facility,

Defendants - Appellees.

No. 03-3280

(D.C. No. 02-CV-3180-GTV)

(D. Kan.)

ORDER AND JUDGMENT*

Before EBEL, MURPHY and McCONNELL, Circuit Judges.
1Plaintiff has also filed a motion to supplement the record and file a

supplemental brief, which we provisionally granted on January 26, 2004. We now

grant that motion and incorporate those materials into the record considered in

this case.

2Plaintiff refers to this scheme as “H.B. 2832,” which was the 1994 bill that

enacted K.A.R. 44-5-115.

3Plaintiff also made several other arguments that are not raised in his

appellate brief (or supporting materials) and are thus waived. In particular, he

additionally argued below that the regulatory scheme constituted cruel and

(continued...)

- 2 -

Jim C. Elliott (“Plaintiff”), a pro se prisoner, brought this civil rights action

under 42 U.S.C. § 1983 seeking damages, a declaratory judgment, and injunctive

relief on various claims challenging the constitutionality of legislation that

authorized the Kansas Secretary of Corrections to adopt a regulatory scheme for

assessing inmate fees. The district court dismissed Plaintiff’s complaint for

failure to state a claim, and Plaintiff now appeals.

1

 We exercise jurisdiction

pursuant to 28 U.S.C. § 1291 and AFFIRM. 

BACKGROUND

In his complaint before the district court, Plaintiff argued, inter alia, that

the Kansas regulatory scheme governing the assessment of inmate fees (K.A.R.

44-5-115)2

 violated his equal protection and procedural due process rights, as well

as his right to be free from ex post facto laws.3 He also requested the
3

(...continued)

unusual punishment under the Eighth Amendment, a bill of attainder, and double

jeopardy. He also asserted that the fee structure lacked a reasonable relationship

to the state’s penalogical interest of compensating victims when applied to those

inmates convicted of victimless crimes.

4The district court also declined to exercise supplemental jurisdiction over

any state claims, since the federal claims were not cognizable under § 1983. See

28 U.S.C. § 1367(c)(3).

5We discern these arguments from Plaintiff’s appellate brief and

attachments thereto, and note that in doing so we are liberally construing these

pleadings since Plaintiff appeals pro se.

6Plaintiff also makes several arguments for the first time on appeal, which

(continued...)

- 3 -

appointment of counsel. The district court pointed to several Kansas Supreme

Court decisions and federal circuit court cases that have found this and similar fee

structures to withstand constitutional scrutiny, and dismissed Plaintiff’s case for

failure to state a claim.4 Because the case lacked merit, the district court

additionally refused Plaintiff’s request for appointed counsel. Plaintiff then filed

a motion to alter or amend the judgment pursuant to Rule 59(e), which was denied

by the district court.

On appeal, Plaintiff argues that the district court erred in finding K.A.R.

44-5-115 to survive due process, equal protection, and ex post facto challenges,

and continues to insist upon the appointment of counsel.5

 For the following

reasons, we AFFIRM the district court’s dismissal of these claims for failure to

state a claim under § 1983.6
6

(...continued)

we decline to consider. He argues: (1) that the prison food is unsanitary and of

poor quality, (2) that he lacks a typewriter and other means of access to the court

system, and (3) that food preparers earn unsatisfactory wages. Plaintiff

additionally argues on appeal that the guards are “biased” and block access to the

courts, which was improperly raised for the first time in Plaintiff’s motion to alter

or amend the judgment pursuant to Rule 59(e). We DISMISS the appeal on these

issues without prejudice.

- 4 -

DISCUSSION

Standard of Review:

A district court may not dismiss a case for failure to state a claim “unless it

appears beyond a doubt that the plaintiff can prove no set of facts in support of

his claims which would entitle him to relief.” Sutton v. Utah State Sch. for Deaf

& Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (quotation omitted). All

reasonable inferences must be indulged in favor of the plaintiff, and pro se

pleadings are to be liberally construed. Perkins v. Kan. Dep’t of Corr., 165 F.3d

803, 806 (10th Cir. 1999). The legal sufficiency of a complaint is a question of

law that we review de novo. Sutton, 173 F.3d at 1236.

We review for abuse of discretion the district court’s failure to appoint

counsel for a plaintiff with in forma pauperis status. McCarthy v. Weinberg,

M.D., 753 F.2d 836, 838 (10th Cir. 1985).
- 5 -

Analysis:

We agree with the district court that Plaintiff has not alleged facts that state

a claim under § 1983 in his challenge of the prison fee structure as violating

procedural due process, equal protection, or ex post facto principles.

First, although Plaintiff possesses a protected property interest in his prison

trust account, prison grievance procedures provide sufficient post-deprivation

proceedings to satisfy procedural due process and Plaintiff has not alleged a lack

of notice. See Weinlood v. Simmons, 262 Kan. 259, 265-66 (1997) (regarding

K.A.R. 44-5-115); Alley v. Kansas, 1997 WL 695590, *4 (D. Kan. 1997) (same);

see also Tillman v. Lebanon County Correctional Facility, 221 F.3d 410, 421-22

(3d Cir. 2000); Reynolds v. Wagner, 128 F.3d 166, 181 (3d Cir. 1997); Scott v.

Angelone, 771 F. Supp. 1064, 1067 (D. Nev. 1991). 

Second, this fee structure does not violate Plaintiff’s equal protection

rights. Plaintiff does not allege that he is in a suspect or quasi-suspect class and

so we presume the regulatory scheme to be valid unless it is not “rationally

related to a legitimate state interest.” See City of Cleburne v. Cleburne Living

Ctr., Inc., 473 U.S. 432, 439 (1985). The state’s goals behind this fee structure

were to teach fiscal responsibility and reimburse the state for costs of

incarceration, both of which are rationally related to the scheme set forth in

K.A.R. 44-5-115. See Roark v. Graves, 262 Kan. 194, 196 (1997) (analyzing the
- 6 -

reasonable relationship between state interests and K.A.R. 44-5-115); see also

Tillman, 221 F.3d at 423 (finding similar state prison fee system to survive equal

protection challenge).

Third, the regulatory fee structure does not violate ex post facto principles

because these fees do not constitute additional punishment or criminal sanctions. 

See Roark, 262 Kan. at 196 (dismissing ex post facto challenge to K.A.R. 44-4-

115). “The fees are not attached to the criminal convictions but are attached to

the inmate trust accounts without regard to what crimes were committed or what

punishment resulted.” Id.

Finally, the district court did not err in failing to appoint counsel in this

case, as Plaintiff’s action lacked merit. See McCarthy, 753 F.2d at 838.
7To the extent that Plaintiff also appeals the district court’s denial of his

motion to alter or amend the judgment under Rule 59(e), we AFFIRM because the

court did not abuse its discretion. See Computerized Thermal Imaging, Inc. v.

Bloomberg, L.P., 312 F.3d 1292, 1296 n.3 (10th Cir. 2002) (stating that standard

of review for Rule 59(e) ruling is abuse of discretion). Plaintiff did not persuade

the court that it had committed manifest errors of law or fact, nor did he present

newly discovered evidence. The court was correct that Rule 59(e) does not

provide an opportunity to raise new issues for the first time after entry of

judgment. See Steele v. Young, 11 F.3d 1518, 1520 n.1 (10th Cir. 1993).

- 7 -

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s dismissal for

failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii),7 which constituted a

“strike” under the Prison Litigation Reform Act, 28 U.S.C. § 1915(g). Plaintiff is

also reminded that he remains obligated to make partial payments until all of the

district court filing fees and appellate fees have been paid.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge