299 F3d 1229 Lile v. R McKune

299 F.3d 1229

Robert G. LILE, Plaintiff-Appellee/Cross-Appellant,
David R. McKUNE and Charles Simmons, Defendants-Appellants/Cross-Appellees.

No. 98-3292.

No. 98-3294.

United States Court of Appeals, Tenth Circuit.

August 20, 2002.

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.

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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)).