Reedy v. Werholtz
| Decision Date | 10 November 2011 |
| Docket Number | No. 11–3040.,11–3040. |
| Citation | 660 F.3d 1270 |
| Parties | Michael E. REEDY; Todd Deal; Grant Nixon; Gerry A. Burden; Eric Hoffman; Timothy Lynn Collins; Larry B. Coleman; Mark E. Carroll; Ray A. Harris; Michael James Perry; Sherwin Taylor; Kristopher T. Valadez; Lawrence Stafford; Kenneth D. McNelly; Derek Bedford; Brian Manis; Brian McGoldrick; Joseph Richard Rivera, Sr.; Zachary Steward; Craig Pittman; Mark Dean McClough; William Shaffer; John Bruner; I.G. Wimbish; Charles Jones; Daniel Eaton, Jr.; Lee Amono; Ronald McCown; Antwan Steele; James Nance; Nathaniel Turner; Deon Dean; Robert Law; St. John Tyler; Daniel M. Dias; George Anthony; Code Laster; Alan Kingsley; Billy Sartin; Bryan Deprist; Keith Keylon; David Jordan; Trever Corbett; Danny Pickerill; Andrew Perez; Gary Hicks; Mike W. Kesselring; Anthony Dean Conley; Floyd Bledsoe; Anthony B. Martinez; Michael Roadenbaugh; Noble Leroy Johnson; Gordon R. Barnes; John Sampson; Robert E. Mitchell; Patrick Angelo; Robert Pineda; Garnet Tolen; Christopher M. Trotter; David M. Young; Douglas L. Heronemus; Reynaldo Alvidrez; Christopher D. Vanbebber; Jack R. Thomas; Howard Borders; Matthew Newton; Frank J. Pencek; Garland Hill; Michael Davidson; Robin Branson; David Napier; Gary McDaniel; Homer Jones; Vaughn L. Foournoy; Jason Landreth; Jerry D. Rice; Joseph Palmer; Bill Elliott; Olander J. Hickles; Joseph Esher; Nathaniel Johns; Pete Spencer; William D. Albright; Joey Boyd; Tracy Markee; Jerry Bramlett; Richard Aldape; Charles Hart; Michael Yardley; Duane Leach; Victor Smith; James Carlson; Albert L. Bosch; Undra D. Lee; Dennis Wallace; Ricky Davis; Chris Davisson; Tommie Kingyon; Malcolm T. Pink; Ricky Payne; Joseph Vaughn; Michael McClure; Kenn Guth; (Fnu) Buehler–May; Dame Taylor; Lemarco Williams; Rorie Johnson; Ronald O. Edwards; Christopher Brown; Kevin Risby; Earl Wilson; Derick Henderson; Charles Wey; Micah Yoakum; Marcus Kelley, Jr.; Asaad Browning; Sabastain Canon; Louis Osei Cotton; Robert Cotton; David Delimont; Roy Dudley; Larry Griffin; Larry Hanes; Howard Jones; Scott McCarkendale; Ernest Davis; John Goss; Anthony Griffin; Johnny Wiggins; Jearl Adams; J.J. Martin; Mark Hupp; Lesie Walker; James Gambler; James Wooldridge; Don Rowell; Paul Nelson; Benjamin Rogers; Jeffrey J. Sperry; Keneth Kinzenbaw; Romel Albufakher; Roosevelt Brown; Bryon Broyles; Michael Carrier; Michael Cote; James Cromwell; Romane Douglas; Thomas Drennan; Lawrence Elnicki; Neal Everts; Melvin Holmes; Terrell Hurt; David Meggers; Mark Petters; Kenneth Robinson; Clayton Swanner; Brian Trober; Marcus Tuggle; James Watson; David Bowman; Marvin Canaan; Daren Creekmore; Dennis Huxley; Duane Henry; Robert Kuhlman; Nathaniel Cooper; Le–Voi D. Easterwood; Carl Mitchell; Gregory Walls; Cory Glen Hamons; Patrick Schweiger; Donald Hubbard; Joshua Olga; Brad Smith; Rick Labrum; Bobbi Hankins, Plaintiffs–Appellants, v. Roger WERHOLTZ, Secretary of Corrections, Kansas Department of Corrections, Defendant–Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
OPINION TEXT STARTS HERE
Submitted on the briefs: *
Leroy T. Messenger, Leawood, KS, for Plaintiffs–Appellants.
Derek Schmidt, Attorney General, Kimberly M.J. Lynch, Assistant Attorney General, Office of Attorney General, Topeka, KS, for Defendant–Appellee.
Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.
Plaintiffs, a group of inmates in the custody of the Kansas Department of Corrections (KDOC), brought this action against Roger Werholtz, Secretary of KDOC (the Secretary), under 42 U.S.C. § 1983 and state law. They challenge two policies set forth in the KDOC's Internal Management Policy and Procedure (IMPP), which, with a few exceptions not relevant to this appeal, require money obtained by the inmate to be saved for use upon release from prison. IMPP 04–103 requires each inmate to place 10% of funds received from sources outside KDOC into a “forced savings account,” 1 Aplt.App. at 250; and IMPP 04–109 requires inmates who are employed through either traditional or private work-release programs to deposit a specified portion of their earnings into a “mandatory savings account,” 2 id. at 259. If the prisoner dies before release, funds in the compulsory savings accounts go to the prisoner's estate. See IMPP 04–103. Plaintiffs' imprecise amended complaint appeared to contend that these policies (1) violate their private-property rights without due process, in violation of the Fifth and Fourteenth Amendments; (2) are unconstitutionally vague; (3) violate the federal and Kansas constitutional prohibitions on cruel and unusual punishment; and (4) impose punishment in violation of the “principles of ex post facto.” Id. at 138.
Contending that Plaintiffs had failed to state a claim and had failed to exhaust their administrative remedies, the Secretary filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6) or, in the alternative, to grant summary judgment. The United States District Court for the District of Kansas granted the motion to dismiss, ruling that the compulsory-savings plans did not violate Plaintiffs' rights. Plaintiffs appeal. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
Plaintiffs' opening brief is not much more cogent than their amended complaint. If Plaintiffs were pro se, we would construe their pleadings liberally. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam). But they are represented by counsel, and we expect attorneys appearing before this court to state the issues on appeal expressly and clearly, with theories adequately identified and supported with proper argument. The Federal Rules of Appellate Procedure require an appellant's brief to contain an argument stating “appellant's contentions and the reasons for them, with citations to the authorities and parts of the record on which appellant relies.” Fed. R.App. P. 28(a)(9). “It is insufficient merely to state in one's brief that one is appealing an adverse ruling below without advancing reasoned argument as to the grounds for the appeal.” United States v. Kunzman, 54 F.3d 1522, 1534 (10th Cir.1995) (internal quotation marks omitted). On most issues Plaintiffs' brief has failed to meet this standard.
To begin with, some issues raised below are not mentioned in the opening brief, much less argued, and are therefore abandoned. See Tran v. Trs. of State Colls. in Colo., 355 F.3d 1263, 1266 (10th Cir.2004). Those issues include vagueness, cruel and unusual punishment (the Eighth Amendment), the ex post facto doctrine, and the Kansas Constitution. Although Plaintiffs argue in their reply brief that the district court failed to rule on a number of claims, the argument, apart from being largely incorrect, comes too late. “[T]he general rule in this circuit is that a party waives issues and arguments raised for the first time in a reply brief.” M.D. Mark, Inc. v. Kerr–McGee Corp., 565 F.3d 753, 768 n. 7 (10th Cir.2009). We see no reason to depart from that rule here.
Plaintiffs hardly do much better in their argument that the district court did not rule on their request for injunctive relief. Apart from one case citation, the totality of their argument on this issue in the opening brief is as follows: Opening Br. at 19. Nowhere do Plaintiffs state the standards applicable to the grant of injunctive relief and explain why the facts and the law support that remedy in this case. Issues not adequately briefed will not be considered on appeal. See Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1547 (10th Cir.1995).
Plaintiffs' opening brief does make a start at arguing procedural due process. But it argues only that they have a property interest in their prison wages. That argument is inadequate. To establish a procedural-due-process claim, a plaintiff needs to demonstrate not only the possession of a protected property interest but also a denial of an appropriate level of process. See Camuglia v. City of Albuquerque, 448 F.3d 1214, 1219 (10th Cir.2006). The district court assumed that Plaintiffs had the requisite property interest but ruled that the process provided was adequate. The argument section of Plaintiffs' opening brief does not challenge the court's reasoning on this point. We therefore do not address the matter. See Kelley v. City of Albuquerque, 542 F.3d 802, 819 (10th Cir.2008).
Plaintiffs do, however, adequately (though barely) raise a substantive-due-process challenge. Prisoners are entitled to substantive due process; but substantive-due-process rights available to free persons may be denied to prisoners if the denial “bear[s] a rational relation to legitimate penological interests.” Overton v. Bazzetta, 539 U.S. 126, 132, 123 S.Ct. 2162, 156 L.Ed.2d 162 (2003). We read Plaintiffs' briefs to contend that the KDOC regulations lack such a rational relation.
To address this claim, we divide Plaintiffs into two groups: lifers and release-eligible prisoners. Despite their complaint's blanket allegation that all Plaintiffs are lifers—that is, that they will be in prison for the rest of their lives—the record establishes that some of them (whom we will call release-eligible prisoners) have a reasonable chance of release during their lifetimes because they were not sentenced to life without parole or to terms so long that it would be impossible for them to live long enough to serve them. That some Plaintiffs are release-eligible prisoners is apparent from the five grievances attached to the amended complaint. They reveal that none of those who filed the grievances had been sentenced to life without parole. And according to the recitations in the grievances, three are eligible for parole at ages 42, 70, and 76, and the other two have release dates at ages 64 and 91 (but the grievances say nothing about their...
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