* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 4 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PAUL E. BLACKFORD, Plaintiff-Appellant,
v. EMPLOYMENT SECURITY BOARD OF REVIEW, Defendant-Appellee. No. 96-3378 (D.C. No. 95-CV-2550) (D. Kan.)

ORDER AND JUDGMENT *
Before BRORBY, EBEL and KELLY , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Appellant Paul E. Blackford filed this action pursu ant to 42 U.S.C. § 1983 against Appellee Kansas Employment Security Board o f Review ("the Board"). The United States District Court for the District o f Kansas granted summary judgment in favor of the Board. Mr. Blackford appe als the district court's order, and we affirm.
Mr. Blackford was a security officer for Jefferson National Bank, Charlottesville, Virginia, until he was terminated on June 7, 1991. Thereafter, Mr. Blackford moved to Overland Park, Kansas, and f iled for unemployment benefits. His initial request was granted. Howeve r, Jefferson National Bank appealed the grant of unemployment benefits, and a teleconference hearing was held by a referee of the Kansas Secretary of Human Resources. The referee determined Mr. Blackford had been terminated for mi sconduct connected with his work. Consequently, the referee concluded Mr. Blac kford could not collect unemployment benefits until he was reemployed "and has had earnings from insured work of at least three times the individual 's determined weekly benefit amount." See Kan. Stat. Ann. § 44-706(b) (1993). Although the t eleconference hearing was recorded, there were problems with the recording and only one-third of the conference was transcribed.-3-

The referee's decision was affirmed by the Board, t he District Court of Shawnee County, Kansas, and the Court of Appeals of the State of Kansas. The Supreme Court of the state of Kansas denied Mr. Bla ckford's petition for review.
In December 1995, Mr. Blackford filed his complaintagainst the Board with the United States District Court for the Distr ict of Kansas. The district court entered summary judgment in favor of the Board in S eptember 1996. Mr. Blackford then initiated this appeal, pro se .
We review the grant or denial of a motion for summary judgment de novo , applying the same legal standard used by the distri ct court pursuant to Fed. R. Civ. P. 56(c). Wolf v. Prudential Ins. Co. of America , 50 F.3d 793, 796 (10th Cir. 1995). Under Rule 56(c), summary judgment is appro priate "if the pleadings, depositions, answers to interrogatories, and admiss ions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue of material fact is genuine where a reasonable jury could return a verdict for the party opposing summary judgment. Wolf , 50 F.3d at 796 (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986)). In applying the summary judgment standard, we examine the factual r ecord and reasonable-4-

inferences therefrom in the light most favorable to the nonmovant. Wolf , 50 F.3d at 796.
Although Mr. Blackford's appellate brief is not per fectly clear, he appears to argue the Board violated his due process rights under the Fourteenth Amendment. Specifically, Mr. Blackford alleges the following violations: (1) the telephonic hearing was not completely recorded; (2) he was not advised the hearing was not completely recorded until the Kansa s Court of Appeals issued its decision; and (3) neither the Board nor any other c ourt helped Mr. Blackford obtain certain travel vouchers and receipts of expe nses and charges from Jefferson National Bank. Mr. Blackford claims the travel vouchers and receipts would have allowed him to prevail in his lawsuit fo r unemployment benefits.
We believe the district court properly determined M r. Blackford could not establish a violation of his due process rights. I n granting summary judgment in favor of the Board, the district court stated: To determine if a constitutional violation occurred under § 1983, "it is necessary to ask what process the State provided , and whether it was constitutionally adequate." Zinermon v. Burch , 494 U.S. 113, 126 (1990) .... Plaintiff's claims have made theirway through the agency procedure according to K.S.A. § 44-709, and through every level of the state court system. Both the DistrictCourt of Shawnee County, Kansas, and the Court of Appeals of the State of Kansas found substantial competent evidence in the record to hold that1 To the extent Mr. Blackford argues his due proces s rights were violated

by the accrual of interest on the initial award of benefits that was divested from Mr. Blackford, we find no merit to this contention. -5- Plaintiff was terminated for misconduct associated with his job. Therefore, Plaintiff's claim for deprivation of due process fails because the process he received was all that he was due. Blackford v. Kansas Employment Sec. Bd. of Review , 938 F. Supp. 739, 741 (D. Kan. 1996) (citations omitted). We agree. Althoug h the telephonic hearing was only partially recorded, we do not believe this err or resulted in an impairment of Mr. Blackford's due process rights. Nor do we beli eve the Board's failure to help Mr. Blackford obtain the travel vouchers and receip ts violated Mr. Blackford's due process rights. The Board was under no duty to obtain Mr. Blackford's evidence for him. Thus, we conclude Mr. Blackford received adequate process in the Kansas court system. 1
Mr. Blackford also argues the district court erred by failing to address whether he is entitled to unemployment benefits pur suant to Kan. Stat. Ann. § 44- 706(b). According to Mr. Blackford, he was employe d in 1991 in Lakewood, California by Edward's Insurance Adjusting and Inve stigations. Because he earned more than $660.00 in insured and bonded work , Mr. Blackford contends he is now eligible for unemployment benefits. Unfortu nately for Mr. Blackford, the issue of whether he is now entitled to unemploymentbenefits under Kan. Stat.-6-

Ann. § 706(b) does not fall within the federal courts' diversity jurisdiction or federal question jurisdiction. See 28 U.S.C. §§ 1331, 1332 (1994). Hence, the district court did not err by failing to address th is issue. If Mr. Blackford truly believes he is entitled to unemployment benefits, h e should pursue such benefits in the Kansas court system, not federal court.
Based on the foregoing reasons, we affirm the distr ict court's entry of summary judgment in favor of the Board.

Entered for the Court
WADE BRORBY United States Circuit Judge