Shannon L. Phillips, Plaintiff-appellant, v. R.d. Canaday, District Judge, for the County of Montgomery,kansas; David L. Thompson, District Judge, for the Countyof Montgomery, Kansas; Terry P. Todd, County Attorney, Forthe County of Montgomery, Kansas; Sharon Thiel, Courtservices Officer for the County of Montgomery, Kansas,defendants-appellees, 986 F.2d 1428 (10th Cir. 1993)

This matter is before the court on plaintiff Shannon L. Phillips' motion for leave to proceed on appeal without prepayment of costs or fees. In order to succeed on his motion, plaintiff must show both a financial inability to pay the required filing fees and the existence of a reasoned, nonfrivolous argument on the law or facts in support of the issues raised on appeal. See 28 U.S.C. § 1915(d); Coppedge v. United States, 369 U.S. 438 (1962); Ragan v. Cox, 305 F.2d 58 (10th Cir. 1962).

Plaintiff, a state prisoner, filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983 against two state judges, a county attorney, and a county court services officer. The district court dismissed the complaint under 28 U.S.C. § 1915(d). It also found plaintiff's appeal to be legally frivolous and not taken in good faith and denied plaintiff leave to appeal in forma pauperis. Plaintiff's complaint asserted discrimination on the basis of handicap, in that he was denied a suspended sentence because he could not participate in a diversion program because of his physical condition.

Plaintiff pleaded guilty to a single burglary charge and received a three-to-ten year sentence. He was then moved to the Kansas State Reception and Diagnostic Center (S.R.D.C.) for evaluation before reappearing before the sentencing court. After his evaluation, the sentencing court ordered suspension of plaintiff's sentence if he completed the Labette Correctional Conservation Camp Program (L.C.C.C.). However, plaintiff was discharged from the L.C.C.C. for medical reasons within a month of reporting to that facility. He was ultimately transferred to the Hutchinson Correctional Facility and his suspended sentence was revoked. The basis for plaintiff's medical discharge was an ankle fracture suffered before his evaluation at the S.R.D.C., which ankle was reinjured following his discharge from L.C.C.C., before his transfer to Hutchinson.

We have examined the record¹  and agree with the district court that plaintiff has not stated a claim against the state judges. Those judges are not shown to have acted in the absence of jurisdiction and therefore have absolute immunity. Stump v. Sparkman, 435 U.S. 349 (1978). With regard to the allegations of discrimination arising out of plaintiff's discharge from the L.C.C.C. diversion program, the decision to revoke plaintiff's suspended sentence because of his physical inability to function at L.C.C.C. is not a violation of plaintiff's constitutional guarantees. Kansas district court judges enjoy broad discretion in sentencing. Plaintiff has made no allegations the sentencing court exercised partiality, was oppressive, or acted in a discriminatory manner. State v. Heywood, 783 P.2d 890, 892-93 (1989). By plaintiff's own admission, removing plaintiff from the L.C.C.C. program and returning him to the custody of the Department of Corrections occurred because of plaintiff's physical inability to function at L.C.C.C. and not because of any improper motive of any named defendants.

We conclude that plaintiff can make no rational argument on the law or facts in support of the issues raised on appeal. Therefore, the motion for leave to proceed on appeal without prepayment of costs or fees is denied. Plaintiff's request for appointment of counsel is denied as moot. The appeal is dismissed.

AFFIRMED.

The mandate shall issue forthwith.