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.

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 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

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).

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 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.
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