Jensen v. Rayl

966 F.2d 1458 NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well. Herbert O. JENSEN, Appellant, v. Richard RAYL; Elaine Little; Thomas Powers; Robert Coad; Jacqueline Bickford; Patrick Branson; Timothy Buley; Robert Carledge; Darryl Fischer; Brian Gette; Wayne Hopfinger; Jim Nelson; Michael Olsen; Jack Paul; Don Redmann; Steve Scott; Cordell Stromme; Anne Udland; Robert Urlacher; Mark A. Wespfenning; Darrell Wald; State Bonding Fund, Appellees. No. 92-1650. United States Court of Appeals, Eighth Circuit. Submitted: June 5, 1992. Filed: June 12, 1992. Before BOWMAN, MAGILL, and BEAM, Circuit Judges. PER CURIAM. [1] Herbert O. Jensen, a North Dakota prisoner, appeals from the district court's1 dismissal of his civil rights complaint. Having carefully reviewed the record, we affirm. [2] According to Jensen's complaint, North Dakota prison officials adopted rules regarding drug testing of inmates in 1988. In June 1989, the new penitentiary warden, Thomas Powers, posted a memorandum in the prison informing inmates that stricter punishment could be imposed for violations of the drug-testing rules. In September 1989, Jensen was disciplined for refusing to submit to drug testing. He alleged in his complaint that the rules were illegally promulgated because they were not officially approved by the Director of Institutions until December 1989, after he was disciplined. [3] We cannot agree with the district court that Jensen's claims regarding these rules were barred by the doctrine of res judicata in light of Jensen v. Little, 459 N.W.2d 237 (N.D. 1990). In that case, the North Dakota Supreme Court affirmed a lower court's decision to dismiss for lack of jurisdiction Jensen's appeal from the disciplinary at issue here. Because there was no adjudication on the merits, res judicata does not apply. We agree with the district court, however, that Jensen appears to assert no more than a state law claim and that he has failed to state a claim for any federal constitutional violation. We reject as meritless Jensen's remaining arguments. [4] Accordingly, we affirm. Footnotes [1] The Honorable Rodney S. Webb, United States District Judge for the District of North Dakota, who adopted the report and recommendation of The Honorable Karen Klein, United States Magistrate Judge for the District of North Dakota