F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 20 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
FOR THE TENTH CIRCUIT
ROBERT G. LILE,
Plaintiff-Appellee/Cross-
Appellant,
v. Nos. 98-3292 & 98-3294
DAVID R. McKUNE and CHARLES
SIMMONS,
Defendants-Appellants/Cross-
Appellees.
OPINION ON REMAND FROM THE
UNITED STATES SUPREME COURT
Timothy G. Madden, Kansas Department of Corrections, Topeka, Kansas, 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, Kansas, 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 (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
(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 (1976)).
REMANDED.
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