F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
November 13, 2006
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JUNG SIK KIM ,
Plaintiff-Appellant,
v. No. 06-3180
(D.C. No. 06-CV-3013-SAC)
STA TE OF K A N SA S; (FN U ) (LNU) (D . Kan.)
(1), Unknown Official of Kansas, in
their individual and official capacity;
(FN U) (LNU) (2), Unknown Agent of
Kansas, in their individual and official
capacity; KATH LEEN SEBELIUS,
Governor of Kansas and Chief
Executive Officer, in her individual
and official capacity; RO GER
W ERHOLTZ, Secretary of
Corrections, in his individual and
official capacity,
Defendants-Appellees.
OR D ER AND JUDGM ENT *
Before KELLY, L UC ER O, and HA RTZ, 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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
In this pro se appeal, Plaintiff-Appellant Jung Sik Kim challenges a district
court order dismissing his civil-rights complaint for failure to state a claim. W e
affirm.
B ACKGROUND
M r. Kim is an inmate at the H utchinson Correctional Facility in K ansas,
serving two concurrent sentences of 15 years to life for murder and attempted
murder. In April 2006 M r. Kim, proceeding pro se and in forma pauperis, filed an
amended complaint in the United States District Court for the D istrict of K ansas,
claiming various constitutional and statutory violations by the K ansas G overnor,
the Kansas Secretary of Corrections, and an unknown Kansas official and agent
“responsible for the application and disbursement of grant monies.” R. Doc. 9 at
1, 2. M r. Kim alleged that he is “a part 1 violent crime offender,” id. at 2, and
that “the defendants has [sic] failed to require plaintiff . . . to serve 85% of his
sentence,” id. at 6. He relied on 42 U.S.C. § 13704, which conditions a state’s
receipt of truth-in-sentencing grants on the state’s implementation of laws
requiring that part-1 violent criminals serve no less than 85% of their sentences.
W ithout clearly alleging whether he has served less than or more than 85% of his
sentence, M r. Kim claims that he is entitled to damages as well as declaratory and
injunctive relief.
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Performing its 28 U.S.C. § 1915A screening function, the district court
dismissed the amended complaint, ruling that (1) nothing in § 13704 requires that
a prisoner be released upon serving 85% of his sentence; (2) M r. Kim’s complaint
is essentially an unexhausted habeas corpus matter; and (3) there are no
allegations that any defendant personally participated in M r. Kim’s allegedly
illegal confinement. This appeal followed.
D ISCUSSION
W e review de novo a § 1915A dismissal for failure to state a claim. See
M cBride v. Deer, 240 F.3d 1287, 1289 (10th Cir. 2001). “Dismissal of a pro se
complaint for failure to state a claim is proper only where it is obvious that the
plaintiff cannot prevail on the facts he has alleged and it would be futile to give
him an opportunity to amend.” Perkins v. Kansas Dep’t of Corr., 165 F.3d 803,
806 (10th Cir. 1999). In conducting our review, we construe the pro se pleadings
liberally, applying a less stringent standard than formal pleadings drafted by
lawyers. See Haines v. Kerner, 404 U.S. 519, 520 (1972). But “we are not bound
by conclusory allegations, unwarranted inferences, or legal conclusions”
contained in those pleadings. Hackford v. Babbitt, 14 F.3d 1457, 1465 (10th Cir.
1994).
After reviewing the record and M r. Kim’s appellate brief, we conclude that
the district court did not err in dismissing the complaint insofar as M r. Kim is
alleging that he has served more than 85% of his sentence. See 42 U.S.C.
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§ 13704 (stating that truth-in-sentencing grants are available to states that require
part-1 violent criminals to “serve not less than 85 percent” of their sentences);
Hill v. M cDonough, 126 S. Ct. 2096, 2101 (2006) (“Challenges to the lawfulness
of confinement or to particulars affecting its duration are the province of habeas
corpus.” (internal quotation marks omitted)); Trujillo v. Williams, No. 04-2257,
2006 W L 2949135, at *11 (10th Cir. Oct. 17, 2006) (“In order for liability to arise
under § 1983, a defendant’s direct personal responsibility for the claimed
deprivation of a constitutional right must be established.”). And insofar as
M r. Kim is alleging that he has yet to serve 85% of his sentence, we fail to see
any injury to him under federal law. Accordingly, we AFFIRM the district
court’s dismissal order for substantially the reasons stated therein. W e remind
M r. Kim of his continuing obligation to make partial payments, first on his
district-court fees, and then on his appellate fees, until the fees have been paid in
full. See 28 U.S.C. § 1915(b).
Entered for the Court
Harris L Hartz
Circuit Judge
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