* This order and judgment is not binding precedent except under the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 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
JIM C. ELLIOTT, Plaintiff-Appellant,
v. ROBERT D. HANNIGAN and CHARLES E. SIMMONIES, Secretary of Corrections, KDOC, Defendants-Appellees. No. 96-3309 (D.C. No. 96-CV-3209) (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-

Mr. Elliott is a state prisoner and a pro se litiga nt. Mr. Elliott filed a civil rights complaint pursuant to 42 U.S.C. § 1983 compl aining his property was taken under a newly established incentive plan adopted bythe Kansas Department of Corrections due to his refusal to participate in in stitutional programming. The trial court dismissed his complaint for failure to state a claim for relief under § 1983. Mr. Elliott then filed a motion for recons ideration and the district court denied this motion finding Mr. Elliott "makes no ar gument which states a viable constitutional challenge to the incentive system."
We turn first to Mr. Elliott's complaint. This doc ument consists of many pages filled with a litany of complaints. In orderto give the reader the flavor of this complaint, we quote it, in small part:

These institution administration members/staff, alr eady knows that they are in violation of my Civil and Constitu tional Rights .... Plus is violating the State/Federal "GRANDFATHER CL AUSE" .... And their [sic] are three (3) State Judges that NEV ER said or made any kind of agreement or deal to take any knid [sic] of institution programs ....

.... The Records Clerk of this institution has WillFullyand Wanton-Misconduct and Negligence by the Warden abus ive-powers has Taken-A-Way my Legal and Personal-property of . .. one T.V. ... that the money did not come from the prisons system
....

....-3- MisConduct of County Attorney, ILLEGALLY Charges, ConVictions, Sentenceing [sic], and Holding, MisCarriage of Justice, MisLeading of Jury, MisConduct of Offices, Denial o f Civil Rights, and much more ....

.... I have tried to get both institutions .... to give my T.V., and Radio, back to me, before it getts-out [sic] of the ir hands, and their [sic] are No Checks, and Balances within the Kansas Prisons of this State ... and they both has Refused and Denied me my LegalPersonal-Property of my T.V., and Radio.
The Trial Court entered a written order, which stat es in part: Having examined the complaint, the court finds plai ntiff has alleged only broadly that the imposition of the inc entive system is unfair and abusive. He has failed to identify any argument which might be construed as a constitutional challenge to the incentive plan, and the court finds the complaint states no m ore than a broad challenge to a state regulation. These allegations are insufficient to state a claim for relief under § 1983, which provid es a remedy for violations of constitutionally-protected interests.
Mr. Elliott appeals this decision arguing, in part: [T]he KDOC, and all institutions of said state [of Kansas] makes great deals of money by through the ... inmate stor e(s) .... Mr. Elliott, he is the full and unqualified owner, and entitled to the present possession of ... 1 ... T.V., and 1 ... Rad io .... Mr. Elliott's pleadings are vague, filled with conc lusions and nearly unintelligible. He asserts he is being illegally h eld. He complains of various1 Petitioner is further notified that he is under acontinuing duty to pay the

partial filing fee required in this court under the provisions of the Prison Litigation Reform Act. Failure to pay these fees w ill be recorded by the office of the Clerk of the Court of the United States Court o f Appeals. Information regarding failure to pay fees as required by law wi ll be provided to the court upon -4- prison programs. He apparently argues he is entitl ed to the return of his TV and radio.
Applying the rules of liberal construction we affor d pro se pleadings, see Riddle v. Mondragon , 83 F.3d 1197, 1202 (10th Cir. 1996), if Mr. Ellio tt is arguing he is illegally held and wishes to challeng e his conviction, a civil rights civil suit cannot be used to raise this issue. Ins tead, Mr. Elliott should file a habeas petition.
Again, applying the rules of liberal construction, if Mr. Elliott is arguing the defendants wrongfully took his TV and radio, a § 1983 suit is not the proper action. See Hudson v. Palmer , 468 U.S. 517, 533 (1984), holding intentional deprivations of property do not violate the Due Pro cess Clause if adequate state post-deprivation remedies are available.
As we can discern no error by the trial court, the judgment is affirmed. The mandate shall issue forthwith. 1the filing of any future appeals in this court.
-5- Entered for the Court
WADE BRORBY United States Circuit Judge