Lile v. McKune, 98-3292.

Decision Date20 August 2002
Docket NumberNo. 98-3294.,No. 98-3292.,98-3292.,98-3294.
Citation299 F.3d 1229
PartiesRobert G. LILE, Plaintiff-Appellee/Cross-Appellant, v. David R. McKUNE and Charles Simmons, Defendants-Appellants/Cross-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Timothy G. Madden, Kansas Department of Corrections, Topeka, KS, for Defendants-Appellants/Cross-Appellees.

Matt Wiltanger (David J. Waxse and Paul W. Rebein with him on the briefs) of Shook, Hardy & Bacon L.L.P., Overland Park, KS, for Plaintiff-Appellee/Cross-Appellant.

Before SEYMOUR, McKAY, and EBEL, Circuit Judges.

McKAY, Circuit Judge.

On remand from the United States Supreme Court's plurality opinion in McKune v. Lile, 536 U.S. ___, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002), we vacate our prior opinion, order and mandate to the district court and remand with direction to dismiss the complaint in its entirety. Petitioners-Appellants' claims pursuant to the Fourth and Fifth Amendments to the Constitution do not rise to the level of compulsion contemplated by Justice O'Connor's concurring opinion. Id. at 2032-35 (O'Connor, J., concurring); see Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) (when no single rationale explains the result of a fragmented Supreme Court, the holding is the "position taken by those Members who concurred in the judgments on the narrowest grounds" (quoting Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)).

REMANDED.

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    ...to the level of compulsion contemplated by Justice O'Connor's concurring opinion" and dismissed them on that ground. Lile v. McKune, 299 F.3d 1229, 1230 (10th Cir.2002). See also Searcy v. Simmons, 299 F.3d 1220, 1225 (10th Cir. 2002) ("[W]e view [Justice O'Connor's] concurrence as the hold......
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1 books & journal articles
  • Civil rights.
    • United States
    • Corrections Caselaw Quarterly No. 24, November 2002
    • November 1, 2002
    ...offensive and utterly reprehensible." (North Dakota Department of Corrections and Rehabilitation) U.S. Appeals Court Lile v. McKune, 299 F.3d 1229 (10th Cir. 2002). A state inmate brought a [section] 1983 claim SELF against prison officials, alleging that a sexual INCRIMINATION abuse treatm......

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