Lile v. McKune

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. -2-