                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        MAR 13 2000
                                  TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                             Clerk

 FRANK J. WILKINS,

          Plaintiff-Appellant,
 v.                                                    No. 99-3293
 OREN SKILES, Chief of Police,                   (D.C. No. 98-3392-GTV)
 Arkansas City, Kansas; JOHN                            (D.Kan.)
 BAUCOM, Detective, Arkansas City,
 Kansas Police Department; BOB
 ODELL, Sheriff of Cowley County,
 Kansas; MIKE KNAPP, Jail
 Administrator, Cowley County Jail;
 ED SANTIAGO, Detective, Arkansas
 City Police Department; JIM
 PRINGLE, District Attorney, Cowley
 County, Kansas; WAH-LEETA
 ROGERS, Clerk of Court, Cowley
 County, Kansas,

          Defendants-Appellees.


                             ORDER AND JUDGMENT        *




Before SEYMOUR , Chief Judge, EBEL and BRISCOE, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined


      *
       This order and judgment is not binding precedent, except under the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.
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.

      Frank Wilkins appeals the district court’s order denying his 42 U.S.C.

§ 1983 complaint. We affirm.

      Wilkins was charged with burglary, theft, conspiracy to commit aggravated

robbery, aggravated robbery, aggravated burglary, and kidnapping. Incident to

their investigation, police officers seized property from Wilkins’ vehicle and

person, and subsequently seized property pursuant to a search warrant. Wilkins

was convicted in state court and his appeal to the Kansas Court of Appeals was

affirmed in part and reversed in part in an unpublished opinion   filed August 6,

1999. The Kansas Supreme Court has granted review of the decision. While his

appeal was pending with the Kansas Court of Appeals, Wilkins attempted to file

a motion for replevin in state court, seeking the return of property that was

seized. The county clerk refused to file the motion and Wilkins filed a petition

for writ of mandamus seeking to compel the clerk to file his motion. The state

administrative judge returned the petition for writ of mandamus and the motion

for replevin to Wilkins, finding the replevin motion was “a civil remedy which

you have attempted to pursue in one or both of the . . . criminal actions,” and that

Wilkins “would be unable to appear pro se to present the matter to the court.”


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Aplt. Br., App. D.

       Wilkins filed his civil rights complaint in federal district court pursuant to

42 U.S.C. § 1983, alleging    inter alia that his constitutional rights were violated

when he was denied the return of his personal property. The district court

dismissed Wilkins’ complaint for failure to state a claim. The court found the

“property was seized as the result of a criminal investigation and has been

retained pursuant to state statute during the pendency of his direct appeal.”

Record, Doc. 21 at 3.

       We review de novo the district court’s decision to dismiss for failure to

state a claim upon which relief can be granted.       Miller v. Glanz , 948 F.2d 1562,

1565 (10th Cir. 1991). Under Kan. Stat. Ann. § 22-2512(1) (1995), seized

property “shall be [] kept as long as necessary for the purpose of being produced

as evidence on any trial.” Since Wilkins’ conviction is on appeal, the seized

property may be necessary as evidence at a retrial.      See State v. Antwine , 636

P.2d 208, 212 (Kan. Ct. App. 1981) (noting that the prosecution has “the

discretion to determine what evidence will be used by the State in the prosecution

of the case”). The district court did not err in finding Wilkins failed to state a

claim for relief.

       Wilkins also argues on appeal that his due process and equal protection

rights were violated when the county clerk refused to file his motion for replevin.


                                             3
Wilkins did not raise this issue with the district court and we will not now

consider it. See Singleton v. Wulff , 428 U.S. 106, 120 (1976);   Lyons v.

Jefferson Bank & Trust , 994 F.2d 716, 721 (10th Cir. 1993).

      The decision of the district court is AFFIRMED. Wilkins shall continue

making partial payments of assessed fees until the entire amount has been paid.

                                              Entered for the Court

                                              Mary Beck Briscoe
                                              Circuit Judge




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