Stansbury v. Cragg

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 24 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
RAYMOND F. STANSBURY,
Plaintiff,
No. 03-3297
ALBERT E. HESLOP; WILLIAM O. (D.C. No. 01-CV-3180-GTV)
FELLMAN; JEFFERSON W. (D. Kan.)
SANDERS; EARL HARRIS;
ALLAN R. TURNER; BRYAN
EUGENE PEARSON; HOLLOMAN
SULLIVAN; JEFFERY CLARK, SR.;
DENNIS EICHELBERGER; LUTHER
DEERE; JOSEPH E. MERSMAN, JR.;
AARON EUGENE CREECH;
MARC A. STOUT; JOSHUA M.
WISHON; KEVIN GRAY; JAMES M.
POLLOCK; ROBERT H.
HUTCHCRAFT; JESSE CAMACHO;
THOMAS MIZE; BRYAN LEE
WILLIAMSON; DAVID
MUSGROVE; STANLEY
GARTLEMAN; DENNIS ROBINSON,
Intervenor-Plaintiffs,
and
JIM C. ELLIOTT,
Intervenor-Plaintiff-
Appellant,
v.
TIM CRAGG, Hearing Officer,
Kansas Department of Corrections;
JOHN LAMB, Regional Director,
Northern Parole Region, Kansas
Department of Corrections; CHARLES
SIMMONS, Secretary of Corrections,
Kansas Department of Corrections;
MARILYN SCAFE, Chairperson,
Kansas Parole Board; DAVID
MCKUNE, Warden, Lansing
Correctional Facility; MIKE NEVE,
Classification Administrator, Lansing
Correctional Facility,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before LUCERO , McKAY , and ANDERSON , Circuit Judges.
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.
Plaintiff Raymond F. Stansbury filed a 42 U.S.C. § 1983 complaint alleging
that his participation in Kansas’ Sexual Abuse Treatment Program (SATP) was
unconstitutional. Mr. Stansbury also filed an emergency motion for temporary
*
This order and judgment is not binding precedent, except under the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.
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restraining order and preliminary injunction. Appellant Jim C. Elliott then moved
to intervene in the case and his motion was granted. The district court originally
granted a temporary restraining order because of the similarities between the
instant case and Lile v. McKune , 24 F. Supp. 2d 1152 (D. Kan. 1998). The
district court in Lile held that the SATP violated the plaintiff’s constitutional
rights under the Fifth Amendment, id. at 1160, and the district court’s decision
was affirmed by this court in Lile v. McKune , 224 F.3d 1175, 1192 (10th Cir.
2000).
On June 10, 2002, the Supreme Court issued its decision in McKune v. Lile ,
536 U.S. 24, 29 (2002), in which the Court held that participation in the SATP did
not violate the Constitution, reversing this court’s prior decision. After the
McKune decision, the district court entered an order giving the parties twenty
days to show cause as to why their case should not be dismissed. Because the
district court did not receive any response to the show cause order by any of the
plaintiffs, including Mr. Elliott, the court dismissed the case based on the holding
in McKune . Mr. Elliott, proceeding pro se, appeals the district court’s decision.
Mr. Elliott has not presented any argument to distinguish himself from the
plaintiff in McKune . In fact, before the Supreme Court’s reversal, he argued to
the district court that he was similarly situated to the plaintiff in McKune . We
agree with the district court that the holding in McKune is dispositive in this case.
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Mr. Elliott raises a number of other issues in this appeal that were not raised
before the district court. We decline to exercise our discretion to depart from our
general rule that we will not consider an issue that was not raised in the district
court. See Walker v. Mather (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992).
The judgment of the district court is AFFIRMED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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