Petition for Writ of Certiorari — Simmons, Secretary, Kansas Department of Corrections v. Johnston

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VOUT U.S

901232 Jan 2 9 2001

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No. 00- Nae”

IN THE

Supreme Court of the Gnited States

CHARLES SIMMONS, Secretary,

Kansas Department of Corrections,

Petitioners,

V.

MARVIN W. JOHNSTON

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

TIMOTHY G. MADDEN CARLA J. STOVALL

Chief Legal Counsel Attorney General

Kansas Department STEPHEN R. MCALLISTER

of Corrections State Solicitor

900 S.W. Jackson (Counsel of Record)

Topeka, KS 66612-1284 120 S.W. 10th Avenue,

(785) 296-3317 : 2nd Floor

Topeka, KS 66612-1597

(785) 296-2215

Counsel for Petitioners

ee TET

me ypomr

QUESTION PRESENTED

Whether the revocation of correctional institution

privileges violates the Fifth Amendment's privilege against

self-incrimination where the inmate has no liberty interest in

the lost privileges and such revocation is based upon the

inmate’s failure to accept responsibility for his crimes as part

of a sex offender treatment program?

Oe Oe Sen

il

TABLE OF CONTENTS

Page

QUESTION PRESENTED i

TABLE OF AUTHORITIES 1

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND REGULATORY

PROVISIONS INVOLVED

STATEMENT

REASONS FOR GRANTING THE WRIT 7

Whether Unconstitutional Compulsion May Result

From Prison Conditions That Are Not Atypical Is

An Important Issue That Merits This Court's

Attention 8

A. The Tenth Circuit's Decision That

Unconstitutional Compulsion May Result

From Prison Conditions That Are Not

Atypical Is Contrary To This Court's Recent

Decisions 8

B._ The Tenth Circuit’s Decision Conflicts With

The Decisions Of Other Circuits And A

Decision Of The Kansas Supreme Court 1]

C. The Tenth Circuit’s Decision Provides This

Court With An Opportunity To Consider

Whether The 7urner v. Safley, 482 U.S. 78

(1987), Balancing Test Applies In The Fifth

Amendment Context... __. Ae OE

11]

TABLE OF CONTENTS (con't)

Page

D_ The Extent To Which Correctional Institution

Privileges May Be Used To Encourage

Inmates To Participate In Sex Offender

Treatment Programs Is An Important

Question 15

CONCLUSION 16

1V

TABLE OF AUTHORITIES

Cases

Asherman v. Meachum, 957 F 2d 97 (2nd Cir. 1992) 1]

Bankes v. Simmons, 265 Kan. 341,

963 P.2d 412 (1998) 13

Baxter v. Palmigiano, 425 U S_ 308 (1976) 9 11

Chambers v. Bachicha, 39 F.3d 1191 (unpublished

table decision), 1994 WL 596702 (10th Cir. 1994) ... 12

Dunn vy. White, 880 F 2d 1188 (10th Cir. 1989) 14

Foote v. Spiegel, 995 F. Supp. 1347 (D. Utah 1998)... 14

Gardner v. Broderick, 392 U.S. 273 (1968) . . 3B 3s

Garrity v. New Jersey, 385 U.S. 493 (1967) |. i.

Guilkey v. Holden, 865 F.2d 258 (unpublished

table decision), 1988 WL 134526 (6th Cir. 1988)... 1]

Johnston v. Simmons, 45 F.Supp. 2d 1220

(Kan 000)... 6 oo eis See ee re l

Jones v. N.C. Prisoners’ Labor Union, Inc.,

ESS US. CICS oo oo re 8

Lefkowitz v. Cunningham, 431 U. S Obl Cier7).....s:. 9

Lefkowitz v. Turley, 414 U.S. 70 42) re 10, .

Lile v. McKune, 45 F. Supp. 2d 1157 (D. Kan. 1999) .

Lile v. McKune, 224 F.3d 1175, (10th Cir. 2000) . oie

Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978) . Fo ae 2

McMorrow v. Little, 109 F.3d 432 (8th Cir. 1997) .. 10, 11

Michenfelder v. Sumner, 860 F.2d 328 (9th Cir. 1988) 13

Minnesota v. Murphy, 465 U.S. 420 (1984)... .. 5, 8, 9,10

Montana v. Imlay, 506 U.S. 5 (1992) ....-.---. 7,9, 14

Qhio Adult Parole Auth. v. Woodard,

4p th Wie) | Serre ewe ree eae 5,9

Sandin v. Conner, 515 U.S. 472 (1995) .......----- 4,8

Searcy v. Simmons, 97 F. Supp. 2d 1055

ti Te DOD co eee 9

Vv

ledder v. Francke, 1991 WL 65497, 224 F 3d 1175

(9th Cir 1991) 1]

Turner v. Safley, 482 US 78 (1987) 6, 13

Uniformed Sanitation Men Ass'n v. Comm'r

of Sanitation, 392 US 280 (1968) 10, 11

Washington v. Harper, 494 US 210 (1990) 14

Constitutional Provisions and Statutes

US Const amend. V l

28 USC. § 1254(1) l

Miscellaneous Authorities

Brief of Amicus Curiae American Professional Society

on the Abuse of Children Supporting Neither Party,

Montana v. Imlay, 506 U.S. 5 (1992) (No. 91-687) 15

OPINIONS BELOW

The Oct 31, 2000, decision of the United States Court of

Appeals for the Tenth Circuit is reported at 232 F 3d 901, and

is included in the petition appendix. Pet App. 3a-8a The

decision of the District Court is reported at 45 F Supp 2d

1220. and is also included in the petition appendix

JURISDICTION

This Court’s jurisdiction to review the final judgment of

the Tenth Circuit is invoked pursuant to 28 U.S.C. § 1254(1)

The Tenth Circuit issued its decision in this case on Oct 31,

2000. This petition has been filed within ninety days of the

latter date, as required by Supreme Court Rule 13!

CONSTITUTIONAL AND REGULATORY

PROVISIONS INVOLVED

The Fifth Amendment to the Constitution provides in

pertinent part that

“No person shall be compelled in any criminal

case to be a witness against himself. .

US. Const. amend V

Kansas Department of Corrections Internal Management

Policy and Procedure 11-101 provides that

“An inmate shall remain on Level III provided he shall

be automatically reduced to Level I for . . . [djocumented

refusal to participate -in work assignments or

recommended programs 7

STATEMENT

1. Nature of the Suit. The Kansas Department of

Corrections (KDOC) employs a comprehensive system of

earnable inmate privileges in order to manage the offender

population and reinforce constructive behavioral changes. As

part of this system, inmates work their way through privilege

‘ncentive levels in accordance with their behavior, at all times

2

subject to reduction for disciplinary, work or recommended

program infractions. Inmate Johnston, a convicted sex

offender’, filed this suit after he was reduced to Level I (from

Level III) for refusing to participate in his recommended

treatment program, the Sexual Abuse Treatment Program

SATP), because it required him to accept responsibility for his

sex crimes. Inmate Johnston claims his privilege reduction to

Level I for refusing to accept responsibility in sex offender

treatment violates his Fifth Amendment privilege against self-

incrimination. —

2. The District Court. The district court ordered a

Martinez report, see Martinez v. Aaron, 570 F.2d 317 (10th

Cir. 1978), and defendants then moved for summary judgment

on all of Mr. Johnston's claims. Mr. Johnston filed an amended

complaint on April 4, 1999, claiming that, by taking away his

privileges and otherwise penalizing him for refusal to

participate in the SATP, defendants (1) violated the prohibition

on ex post facto laws contained in the United States

Constitution, art. I, § 9, cl. 3; (2) improperly penalized him for

exercising his right to freedom of speech under the First

Amendment; (3) violated his Fifth Amendment due process

rights by infringing on a liberty interest; (4) violated his Fifth

Amendment nght against self-incrimination; and (5) denied him

due process under the Fourteenth Amendment. He sought

declaratory and injunctive relief prohibiting recommendation of

rehabilitative programs (and the penalties imposed by his

refusal to participate) unless he voluntarily requested the

program. The district court granted summary judgment to

defendants on all claims. Pet. App. 9a-19a.

' Marvin W. Johnston is serving thirty-five years to life at Lansing

Correctional Facility on convictions in 1979 for indecent liberties with a

child, kidnapping, and sodomy. He is an habitual criminal, having

previously been convicted for aggravated arson, burglary, and grand theft,

and has spent all but sixteen of his fifty-nine years in prison. State v.

Johnston, Sedgewick County, Kansas Case No. 79 CR 601.

Si SA ME

3. The Tenth Circuit. The Tenth Circuit vacated a

portion of the district court's judgment’ and remanded to the

district court with instructions to dismiss as moot all but the

Fifth Amendment claim. Pet. App. 3a-8a. The Tenth Circuit

held that Lile v. McKune, 224 F.3d 1175 (10th Cir. 2000)

controls in this case and compels reversal of the district court's

summary judgment in favor of the defendants on the Fifth

Amendment issue. The Tenth Circuit began its Fifth

Amendment analysis in Lile by briefly addressing the

incrimination component of the privilege. /d at 1179. The

Sexual Abuse Treatment Program requires participating

inmates to complete a written sexual history and to sign an

Acceptance of Responsibility form. Inmates are not given

immunity from prosecution for any of their disclosures. The

Tenth Circuit found that the incrimination element of the Fifth

Amendment privilege was satisfied here for two reasons. First,

the written sexual history might require persons such as inmate

Lile to reveal uncharged sexual offenses. Jd Second,

completion of the Acceptance of Responsibility form could

subject inmates such as Lile to perjury charges for having

maintained their innocence at trial. /d.

The Tenth Circuit then addressed the compulsion element

of the privilege. /d at 1180. The court began with an

examination of the adverse consequences to an inmate for

refusing to accept responsibility or provide a written sexual

history. Observing that inmate Lile faced transfer to maximum

security (from medium security) if he failed to comply with the

SATP requirements, the court noted that such a “transfer

would restrict [inmate Lile’s] privileges.”

? This result renders it unnecessary to reach the other issues

raised by Mr. Johnston, including the interplay between

Kan. Admin.Reg. S 44-5-105(c)(1) and IMPP 11-101.

4

Specifically, he [inmate Lile] would lose his personal TV;

he would have limited access to prison organizations and

activities and would be unable to participate in the IMPP

[the prison’s Internal Management Policies and

Procedures programs]; he would have limited access to

the gym and yard area; there would be a substantial

reduction in the amount of money he could spend in the

canteen per pay period, from $140 per payroll .. . to $20

per payroll . . .; he would receive a reduction in pay and

intake property, and he would have substantially restricted

visitation privileges.

Id.

The Tenth Circuit, however, concluded that Lile would

not be denied parole nor lose any good time credits because he

refused to participate in the SATP. /d at 1180-82. The Tenth

Circuit thus concluded that the only adverse consequences

inmate Lile would suffer for refusing to participate in the SATP

would be “transfer to maximum security prison and the

resulting loss of privileges.” /d. at 1182. According to the

court, “[t]he critical question, then, is whether the State’s

imposition of these consequences in response to [inmate Lile’s]

invocation of his Fifth Amendment right against self-

incrimination constitutes impermissible compulsion.” /d.

In resolving the compulsion issue, the Tenth Circuit opined

that “[t}here is no single test or factor that is dispositive, so we

begin by examining Defendants’ arguments.” Jd. at 1183. The

court first addressed the argument that there is no compulsion

here because inmate Lile’s loss of privileges implicates no

protected liberty interest under Sandin v. Conner, 515 U.S. 472

(1995). Although recognizing that changes in an inmate’s

prison classification ordinarily do not deprive him of a liberty

interest, the Tenth Circuit opined that “nowhere in the relevant

jurisprudence does the Supreme Court even hint that an

individual attempting to show a violation of his Fifth

Amendment privilege must have a protected liberty interest for

5

compulsion to occur.” /d. at 1184. Rather, the court held that

“fcJompulsion can be established by hardships that may not be

atypical and that do not constitute enforceable liberty

interests.” See also id. at 1184. (“It is clear that the

compulsion element of a Fifth Amendment claim can be

established by penalties which do not constitute a deprivation

of protected liberty interests under the due process clause’).

Id.

The Tenth Circuit then asserted that the “next critical

question is whether the consequences imposed constitute

penalties that are sufficiently potent and substantial to implicate

the Fifth Amendment.” /d. at 1185. Reviewing again the

changes in privileges that would accompany a move from

maximum to medium security (including loss of a personal TV),

the Tenth Circuit concluded that “these deprivations and

changes in environment are penalties sufficient to implicate the

Fifth Amendment because they have substantial or potent

effects on the inmate.” /d. In reaching that conclusion, the

court emphasized that a critical factor is that refusal to

participate in the SATP, “standing alone,” results in the loss of

privileges. Jd.

The Tenth Circuit next considered the argument that there

is no compulsion because participation in the SATP is

voluntary and changing inmate Lile’s privileges when he

refused to participate is the withholding of a privilege rather

than the imposition of punishment. /d. at 1186. The court

opined that the fact that the change in privileges in this case

automatically followed refusal to participate in the SATP

undermined the argument that participation “is truly voluntary.”

Id. In supporting that conclusion, the Tenth Circuit

distinguished Ohio Adult Parole Authority v. Woodard, 523

U.S. 272 (1998) (inmate invoked privilege in clemency

proceeding), and Minnesota v. Murphy, 465 U.S. 420 (1984)

(person on probation claimed privilege)—both of which found

no Fifth Amendment violation or compulsion—as cases in

: 6

which the person was not “punished or penalized solely for

choosing to remain silent.” /d. at 1187.

The Tenth Circuit then turned to “[t]wo additional

considerations” that it opined might be helpful in determining

what constitutes compulsion. /d. at 1188. “The first is a

distinction between a privilege and a penalty.” /d.

Acknowledging that such a distinction exists and that it may

have constitutional significance in this context, the Tenth

Circuit nonetheless concluded that inmate Lile’s loss of

privileges in this case is “properly characterized as imposing

penalties.” Jd.

The Tenth Circuit also considered “the automaticity of the

penalty.” /d at 1189. Again, the court opined that Supreme

Court decisions finding no compulsion in the context of

probation, parole or clemency, all involved situations in which

adverse consequences for remaining silent were not

“automatic.” /d@ Thus, the court concluded that “the State has

violated [inmate Lile’s] Fifth Amendment right against self-

incrimination.” /d.

Lastly, having found a constitutional violation, the Tenth

Circuit applied the balancing test of 7urner v. Safley, 482 U.S.

78 (1987), which requires an assessment of “whether the prison

policy at issue ‘is reasonably related to legitimate penological

interests.”” /d at 1190 (quoting 7urner). The Tenth Circuit

recognized that the state has legitimate interests in the public

safety and rehabilitating sex offenders. /d. at 1191. The court

also recognized that

[t]here is a rational connection between the policy of

having prisoners admit responsibility for their offenses and

disclose their sexual history in order to participate in the

SATP and the legitimate governmental interest in

rehabilitation of sex offenders. In fact, most mental health

experts agree that a “sex offender must admit his guilt for

treatment and rehabilitation to be successful.”

Id. (internal citations omitted).

Nonetheless, the Tenth Circuit concluded that the

balancing of interests favors inmate Lile, because (1) “there is

no evidence that [inmate Lile] has any alternative means of

exercising his Fifth Amendment right,” /d. at 1191, “there is no

evidence that accommodation of the right would have any

negative effect on guards, other prisoners, or prison resources, ”

and (3) the alternative to the policy would be to grant immunity

or privilege any statements disclosed by the inmate. Asserting

that the state could still prosecute inmate Lile for other sex

crimes—it just could not use any statements he made in the

SATP—the Tenth Circuit concluded that “the 7urner balancing

easily weighs in favor of [inmate Lile].” /d. at 1192.

REASONS FOR GRANTING THE WRIT

The issue whether a State may withdraw privileges from

a convicted sex offender for refusing to participate in a

treatment program and accept responsibility for his crimes is

one this Court decided to review previously, but the procedural

posture of that earlier case ultimately prevented the Court from

reaching the merits. See Montana v. Imlay, 506 U.S 5 (1992)

(dismissing the case because the offender would serve the same

term of imprisonment regardless of the Court’s resolution of

the merits). Justice White, in his dissent from the dismissal,

noted that:

In the decision below, the Montana Supreme Court held

that, “absent any grant of immunity” from prosecution for

incriminating statements made during therapy, the Fifth

Amendment “prohibit[s] augmenting a defendant's

sentence because he refuses to confess to a crime or

invokes his privilege against self-incrimination” The

constitutional question is an important one and the

decision below places the Montana Supreme Court in

conflict with other courts.

506 US. at 6.

8

The Court should take this opportunity to address the

important constitutional question left unanswered in /mlay.

The issue is cleanly presented in this case, there is no danger of

mootness, the Tenth Circuit ruling in Lile v. McKune, 224 F.3d

1175 (10th Cir. 2000) which controls in this case addresses the

substantive issue at length in its opinion, and the Tenth

Circuit’s resolution of the issue is inconsistent with both this

Court’s and other courts’ decisions. Indeed, this Court’s

decisions since it dismissed Montana v. Imlay almost ten years

ago have strengthened the State’s argument that the policy at

issue here does not violate the Fifth Amendment.

Whether Unconstitutional Compulsion May Result

From Prison Conditions That Are Not Atypical Is An

Important Issue That Merits This Court’s Attention.

A. The Tenth’ Circuit’s Decision That

Unconstitutional Compulsion May Result From

Prison Conditions That Are Not Atypical Is

Contrary To This Court’s Recent Decisions.

In Sandin v. Conner, 515 U.S. 472 (1995), this Court

recognized that “prisoners do not shed all constitutional rights

at the prison gate, but ‘[l]awful incarceration brings about the

necessary withdrawal or limitation of many privileges and

rights, a retraction justified by the considerations underlying

our penal system.” Jd. at 485 (internal citation omitted)

(quoting Jones v. N.C. Prisoners’ Labor Union, Inc., 433 U.S.

119, 125 (1977)). Consequently, this Court held that prison

officials could place a prisoner in disciplinary segregation for

thirty days without providing procedural due process because

such segregation did not impose an “atypical and significant

hardship on the inmate in relation to the ordinary incidents of

prison life.” Jd at 484. In other words, when an inmate has no

constitutionally protected right to, or liberty interest in, a

particular housing level, his constitutional rights cannot be

violated when that housing level is changed.

9

Reducing prison privileges—in which an inmate has no

constitutionally protected liberty interest—for failing to accept

responsibility in treatment is not compulsion under the Fifth

Amendment. This Court has held that neither (1) the threat of

a reduced opportunity for clemency, Ohio Adult Parole Auth.

v. Woodard, 523 U.S. 272 (1998), (2) the threat of revocation

of parole, Minnesota v. Murphy, 465 U.S. 420 (1984), nor (3)

the threat of adverse inferences being drawn at a prison

disciplinary hearing, Baxter v. Palmigiano, 425 U.S. 308

(1976), constitute compulsion under the Fifth Amendment.

Nonetheless, the Tenth Circuit held in this case that the threat

of a reduction in institutional privileges constitutes compulsion

under the Fifth Amendment.

In Ohio Adult Parole Authority v. Woodard, 523 U.S. 272

(1998), this Court held that a death row inmate could be forced

to choose between incriminating himself or having adverse

inferences drawn from his silence at his clemency interview.

Despite the fact that “[i]n Woodard, plaintiff did not face a

possible loss of privileges and benefits, but rather a possible

loss of life,” Searcy v. Simmons, 97 F. Supp. 2d 1055, 1059

(D. Kan. 2000), the Tenth Circuit ruling in Lile v. McKune,

224 F.3d 1175 (10th Cir. 2000) which controls in this case

distinguished Woodard, opining that “Mr. Woodard was not

being punished for invoking the Fifth Amendment privilege.”

In Minnesota v. Murphy, 465 U.S. 420 (1984), this Court

held that the Fifth Amendment was not violated when a parolee

was questioned by his parole officer about prior criminal

activity after having been told that failure to be truthful could

result in revocation of parole. In Lile, the Tenth Circuit relied

on a footnote in Murphy in which this Court opined that “a

state may validly insist on answers to even incriminating

questions . . . as long as it recognizes that the required answers

may not be used in a criminal proceeding.” /d. at 435 n.7.

However, Justice White, author of Murphy, later declared that

any “assumption that this Court’s decision in Minnesota v.

10

Murphy mandates . . . immunity from prosecution based upon

incriminating statements made to a therapist... reflect a

possible misunderstanding of [a State’s] obligations under the

law.” Montana v. Imlay, 506 U.S. at 8 (White, J., dissenting

from dismissal of writ of certiorari as improvidently granted)

Cf. McMorrow v. Little, 109 F.3d 432, 436 (8th Cir. 1997)

(“[Minnesota v. Murphy] does not, however, overrule the

Court’s earlier cases that state that the government can

penalize someone for refusing to cooperate on government

matters, even when the person does so by invoking his privilege

against self-incrimination’”) (citing Lefkowitz v. Cunningham,

431 US. 801, 806 (1977); Lefkowitz v. Turley, 414 U.S. 70, 84

(1973); Uniformed Sanitation Men Ass'n v. Comm'r of

Sanitation, 392 U.S. 280, 284 (1968), Gardner v. Broderick,

392 U.S. 273, 278-79 (1968); Baxter v. Palmigiano, 425 US.

308, 320 (1976)).

Finally, in Baxter v. Palmigiano, 425 U.S. 308 (1976), the

Court held that negative inferences could be drawn from an

inmate’s silence in a prison disciplinary hearing without

violating the Fifth Amendment, in part because “[d]isciplinary

proceedings in state prisons .. _ involve the correctional

process and important state interests other than conviction for

crime.” Jd. at 319. The Tenth Circuit ruling in Lile v.

McKune, 224 F.3d 1175 (10th Cir. 2000) which controls in this

case, however, distinguished Baxter, opining that “[h]ere,

unlike in Baxter, Plaintiffs refusal to submit to the

interrogation . . . standing alone, would certainly result in the

[adverse consequences].” In Baxter the Court declared that

[i]t is thus undisputed that an inmate’s silence in and of

itself is insufficient to support an adverse decision by the

Disciplinary Board. In this respect, this case is very

different from the circumstances before the Court in the

Garrity-Lefkowitz decisions, where refusal to submit to

interrogation and to waive Fifth Amendment privilege,

standing alone and without regard to the other evidence,

1]

resulted in loss of employment or opportunity to contract

with the State.

425 US. at 317-18 (citing Garrity v. New Jersey, 385 U.S. 493

(1967) (holding that police officers questioned concerning

alleged fixing of traffic tickets in their boroughs could not be

threatened with loss of employment for refusing to answer),

Lefkowitz v. Turley, 414 U.S. 70 (1973) (holding that statute

precluding award of government contract to any person

refusing to answer questions concerning state contract violated

the Fifth Amendment)). _

The Tenth Circuit’s analysis ignores the fact that it is not

inmate Johnston’s silence alone but rather his conviction of a

sexual offense, plus the recommendation for treatment, plus his

refusal to participate in that treatment which results in adverse

consequences. Seen in this light, this case is much more similar

to Baxter than to either Garrity or Lefkowitz. See Asherman

v. Meachum, 957 F 2d 978, 982 (2nd Cir. 1992) (“The fact that

a public employee might face the unpleasant choice of

surrendering his silence or losing his job is no bar to an adverse

consequence so long as the consequence is imposed for failure

to answer a relevant inquiry and not for refusal to give up a

constitutional right”) (citing Gardner v. Broderick, 392 US.

273, 278-79 (1968); Uniformed Sanitation Men Ass'n Vv.

Comm 'r of Sanitation, 392 U.S. 280, 284 (1968)), McMorrow

v. Little, 109 F.3d 432, 436 (8th Cir. 1997) (“[P]rison officials

may constitutionally deny benefits to a prisoner who, by

invoking his privilege against self-incrimination, refuses to

make statements necessary for his rehabilitation, as long as

their denial is based on the prisoner’s refusal to participate in

his rehabilitation and not his invocation of his privilege’)).

12

B. The Tenth Circuit’s Decision Conflicts With The

Decisions Of Other Circuits And A Decision Of

The Kansas Supreme Court.

The Tenth Circuit ruling in Lile v. McKune, 224 F.3d

1175, 1180 (10th Cir. 2000) which controls in this case

recognized that other courts would disagree with its Sandin

analysis in this case, citing the following:

But cf. Tedder [v. Francke], 1991 WL 65497, at *2 [(9th

Cir. 1991)] (holding that Oregon sex offender program did

not violate plaintiff's nght against self-incrimination in part

because he has no constitutional right to discretionary

parole before the expiration of his sentence); Guilkey v.

Holden, 865 F.2d 258, 1988 WL 134526 (6th Cir. 1988)

(Table) (affirming district court determination that Fifth

Amendment right against self-incrimination was not

violated because plaintiff had no constitutionally protected

liberty interest in discretionary parole).

Id

Indeed, the Tenth Circuit had to distinguish its own

precedent in finding compulsion in this case: “To the extent

that [our decision in] Chambers may be interpreted as a rule

that compulsion can occur only where one is forced to forgo a

constitutional right or a liberty interest, we are not bound to

follow it here.” 224 F.3d at 1185 (citing Chambers v.

Bachicha, 39 F.3d 1191 (unpublished table decision), 1994 WL

596702, at *3 (10th Cir. 1994) (finding it “dispositive of our

inquiry that there is no compulsion for Fifth Amendment

purposes . . . [because] Appellant has no nght to earned time”).

The Tenth Circuit’s holding in this case also conflicts with

the Kansas Supreme Court’s explicit conclusion that

The housing assignment given to an inmate, his or her

custody classification, granting of parole, spending ,

limitations at a canteen, regulation of visiting hours, |

———— ee

13

withholding of good time awards, and regulation of other

daily activities which are not atypical and do not pose a

significant hardship within a prison, do not involve a

liberty interest or violate the defendant’s Fifth Amendment

right by compelling him to incriminate himself and

participate in SATP.

Bankes v. Simmons, 265 Kan. 341, 351, 963 P.2d 412, 420

(1998). The Tenth Circuit’s response to that decision ruling

in Lile v. McKune, 224 F.3d 1175 (10th Cir 2000) which

controls in this case is that “the liberty analysis should not be

part of a Fifth Amendment privilege case.” Pet. App.

The Tenth Circuit’s decision conflicts with the decisions

of other Circuits and the Supreme Court of Kansas, and the

constitutional question presented is an important one that

warrants resolution by this Court. :

C. The Tenth Circuit’s Decision Provides This Court

With An Opportunity To Consider Whether The

Turner v. Safley, 482 U.S. 78 (1987), Balancing

Test Applies In The Fifth Amendment Context.

In Zurner v. Safley, 482 U.S. 78 (1987), the Court held

that “when a prison regulation impinges on inmates’

constitutional rights, the regulation is valid if it is reasonably

related to legitimate penological interests.” /d. at 89. The

Court then set out the following “factors that are relevant in

determining the reasonableness of the regulation at issue”: (1)

whether there is a valid, rational connection between the prison

regulation or practice and a legitimate governmental interest,

(2) whether the regulation or practice allows inmates an

alternative means of exercising the subject constitutional night;

(3) the impact of accommodation of the asserted nght on

guards, other inmates, and the allocation of resources generally;

and (4) the absence of ready alternatives to the regulation or

practice. /d. at 89-91.

14

After finding a Fifth Amendment violation in Lile v.

McKune, 224 F.3d 1175 (10th Cir. 2000) which controls in this

case this case, the Tenth Circuit applied the 7urner balancing

test and found that it “easily” weighed in favor of inmate Lile

However, it may be inappropriate to apply the 7urner factors

in the Fifth Amendment context. 7urner involved claims under

the First Amendment and the constitutional right to marry

Courts, including the Tenth Circuit itself, have recognized that

application of the factors set forth in Z7urner to other

constitutional claims may be inappropriate. See, e.g., Dunn v.

White, 880 F.2d 1188, 1194 n.3 (10th Cir. 1989) (“The 7urner

test appears analytically to have only limited applicability to a

prisoner's fourth amendment challenge”); Michenfelder v.

Sumner, 860 F.2d 328, 331 (9th Cir. 1988) (noting that the

second 7urner factor is “much more meaningful in the first

amendment context than the fourth, where the right is to be

free from a particular wrong”), see also Foote v. Spiegel, 995

F. Supp. 1347, 1349 n2 (D. Utah 1998) (“After careful

consideration, this court determines that the.Supreme Court’s

decision in Washington only commands use of the 7urner

‘standard of review’ (i.e. reasonableness instead of strict

scrutiny) when assessing prisoners’ or detainees’ constitutional

claims; it does not command the use of the 7urner factors

themselves”) (citing Washington v. Harper, 494 US. 210

(1990))

It does not appear that this Court has ever applied 7urner

to a case involving the Fifth Amendment. Thus, this case

presents the Court with an opportunity to address whether, and

if so how, the 7urner balancing test and factors apply to

inmates’ Fifth Amendment claims.

EE es

|

|

|

|

15

D. The Extent To Which Correctional Institution

Privileges May Be Used To Encourage Inmates

To Participate In Sex Offender Treatment

Programs Is An Important Question.

As noted above, the Court previously granted review in a

case raising many of these issues in the related context of

probation. At that time, one neutral amicus pointed out the

importance of incentives for effective sex offender treatment

Denial is a common phenomenon in offender treatment

As treatment has become more sophisticated, methods for

overcoming denial and encouraging honesty have been

developed. Certain offenders continue to deny the abuse,

however, despite the best efforts of therapists . .

Efforts to provide meaningful offender treatment will be

severely undermined unless offenders can be required to

admit the abuse as a precondition to treatment, and unless

failure to admit can lead to termination of treatment and

revocatio of probation or parole.

Brief of Amicus Curiae American Professional Society on the

Abuse of Children Supporting Neither Party at 2, 8,

Montana v. Imlay, 506 U.S. 5 (1992) (No. 91-687).

Prison administrators need a definitive answer to the

question presented in this case, in order to determine how best

to protect the public safety and to manage their growing sex

offender populations. Treatment programs have proven

effective, but they will be much less so absent strong incentives

for inmates to participate. A decision in this case by this Court

will affect potentially thousands of inmates and directly

implicates the public safety

16

CONCLUSION

For the foregoing reasons, Kansas respectfully requests

that the Court grant this petition for a wnt of certiorari.

Respectfully submitted,

TIMOTHY G. MADDEN CARLA J. STOVALL

Chief Legal Counsel Attorney General

Kansas Department STEPHEN R. MCALLISTER

of Corrections State Solicitor

900 S.W. Jackson (Counsel of Record)

Topeka, KS 66612-1284 120 S.W. 10th Avenue,

(785) 296-3317 2nd Floor

Topeka, KS 66612-1597

(785) 296-2215

January, 2001

APPENDIX

la

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MARVIN W. JOHNSTON,

Plaintiff - Appellant,

Vv. No. 99-3193

CHARLES SIMMONS,

Secretary of Corrections,

DAVID MCKUNE,

Defendants - Appellees.

ORDER

Filed November 29, 2000

Before TACHA, ANDERSON, and LUCERO, Circuit

Judges.

This matter is before the court on appellee’s motion to stay

the mandate. The request is granted. The stay shall be in

effect for ninety days from today’s date, unless a petition for

certiorari is filed in the United States Supreme Court. In the

2a

event, the stay shall remain in effect until the Supreme Court’s

final disposition. See Fed. R. App P. 41(d)(2)(B).

Entered for the Court

PATRICK FISHER, Clerk of Court

S/

by:

Deputy Clerk

3a

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MARVIN W. JOHNSTON,

Plaintiff - Appellant,

V No. 99-3193

(D.C. No. 97-CV-

CHARLES SIMMONS, 3354-KHV)

Secretary of Corrections, and (D. Kan.)

DAVID MCKUNE,

Defendants - Appellees.

ORDER AND JUDGMENT

OA AED ASHE bs BHO one

Filed Oct. 31, 2000

Before TACHA, ANDERSON, and LUCERO, Circuit

Judges.

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

doctrines of law of the case, res judicata, and collateral estoppel. The

court gezierally 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.

4a

After examining the briefs and appellate record, this panel

has determined 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.

Marvin W. Johnston appeals from summary judgment

granted in favor of Charles Simmons, Secretary of Corrections

for the State of Kansas, and David McKune, warden of the

Lansing Correctional Facility, on Mr. Johnston’s suit brought

pursuant to 42 U.S.C. § 1983. Our jurisdiction arises under 28

U.S.C. § 1291, and we reverse.

I. Facts and proceedings

The relevant facts are undisputed. Mr. Johnston is serving

thirty-five years to life at Lansing Correctional Facility on

convictions in 1979 for indecent liberties with a child,

kidnapping, and sodomy. He is an habitual criminal, having

previously been convicted for aggravated arson, burglary, and

grand theft, and has spent all but sixteen of his fifty-nine years

in prison. See R. Doc. 10, Ex. 4 & 5.

In 1988 the Kansas legislature enacted legislation requiring

inmates and the secretary of corrections to enter into written

agreements that specified the programs the secretary

determined the inmate must satisfactorily complete in order to

be prepared for release on parole or post-release supervision.

See Kan. Stat. Ann. § 75-5210a; Payne v. Kansas Parole Bd.,

887 P.2d 147, 150 (Kan. Ct. App. 1994). For those inmates

incarcerated prior to enactment of that statute and therefore

not covered by its mandatory provisions, see Payne, 887 P.2d

at 150 (holding that § 75-5210a does not apply retroactively),

Kansas administrative regulations provide for voluntary

entrance into a rehabilitative program plan. See Kan. Admin.

Reg. § 44-5-105(c)(2). The regulations specifically provide

that inmates “shall not be penalized for refusal to participate in

a formal program plan.” § 44-5-105(c)(1). These regulations

il om nan Ra mn

Sa

“have the force and effect of law in Kansas.” Stansbury v.

Hannigan, 960 P.2d 227, 234 (Kan. 1998).

In 1989 Mr. Johnston was offered an opportunity to

participate in a rehabilitation program that included sex

offender counseling. He refused, acknowledging that his

refusal would “likely have an adverse effect on [his] chance to

be granted parole.” R. Doc. 28, Ex. C. In March 1994, after

his first parole hearing, Mr. Johnston was denied parole

because of the serious nature and circumstances of the crime,

his history of criminal activities, his non-participation in

programs, and his number of times in prison. See R. Doc, 10,

Ex. 1. In January 1996, the Kansas Department of Corrections

adopted amended Internal Management Policy and Procedure

(IMPP) 11-01, which provides a system of privileges and

incentives as well as disciplinary measures for inmates. At its

initiation, all inmates were placed at the highest level of

privileges and incentives (Level III), which gave them “the

same privileges that existed prior to implementation of IMPP

11-101.” See Id. at 237. Despite the express prohibition on

penalties pronounced in § 44-5-105(c)(l), however, IMPP 11-

101 provides for reduction to Level 1 for those inmates who

refuse to participate in a “recommended” program at the time

of placement. See R. Doc. 10, Ex. 11 at IV(B)€2).

By 1995 Mr. Johnston had completed recommended

educational and vocational programs and was waiting to get

into recommended mental health counseling. See R. Doc. 10,

Ex. 9. In 1995 and again in 1996, Mr. Johnston was asked to

voluntarily enroll in the Sexual Abuse Treatment Program

(SATP).! The SATP requires inmates to sign a form stating

that the program is voluntary, to sign a waiver of

confidentiality, to prepare a complete written sexual history

| In 1995 the treatment program was called the Sex Offender Treatment

Program, or SOTP. Because it is now called the SATP, we refer io it as

such in this order and judgment.

6a

that includes uncharged sex crimes, and to take a polygraph

examination to verify the truthfulness of the sexual history. He

refused the program in 1995, with the understanding that

failure to participate in it would result in withholding of good

time credits that would affect his date of release. See Jd. In

1996, after the new penalties were adopted by IMPP 11-101,

Mr. Johnston agreed to sign papers committing him to the

SATP program in order to avoid being automatically punished

for refusing a program. See id. Ex. 14. Because he would only

sign the papers “under duress,” the prison staff considered his

behavior to be “a refusal.” /d Ex. 12. Mr. Johnston wrote a

letter to his unit manager, explaining that he had no desire to

be paroled and that he had informed the parole board of that

fact in 1994. See id. Ex. 14. He requested that his unit

_manager recommend termination of the program participation

requirement as a term of staying at privilege Level III. See id _

His request was denied, and, as a result of his refusal in 1996

to participate in the SATP, his privileges were reduced to

Level I and he was terminated from his place of employment

and not allowed to work for 90 days. See R. Doc. 5, Ex. | at

1.

On March 5, 1997, Mr. Johnston was again denied parole

for the same reasons as stated in 1994 and because of his

“objections regarding parole.” See id., Doc. 10, Ex. 2. His

next parole hearing was deferred for six years (until 2003)

because it was “not reasonable to expect that parole would be

granted at a hearing if held before then [because Mr. Johnston]

has an extensive history of crimes against people and children.”

Id. Mr. Johnston subsequently sent a letter to the Parole Board

on March 19, 1997, asking it to “pass” on him to his

conditional release date or at least twenty years because he did

not desire parole. See id., Ex. 3.

On August 15, 1997; Mr. Johnston filed suit under § 1983.

See Johnston v. Simmons, 45 F. Supp. 2d 1220 (D. Kan.

1999). The district court ordered a Martinez report, see

Ta

Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978), and

defendants then moved for summary judgment on all of

Mr. Johnson’s claims. Mr. Johnston filed an amended

complaint on April 4, 1999, claiming that, by taking away his

privileges and otherwise penalizing him for refusal to

participate in the SATP, defendants (1) violated the prohibition

on ex post facto laws contained in the United States

Constitution, art. I, § 9, cl. 3; (2) improperly penalized him for

exercising his right to freedom of speech under the First

Amendment; (3) violated his Fifth Amendment due process

rights by infringing on a liberty interest: (4) violated his Fifth

Amendment right against self-incrimination: and (5) denied him

due process under the Fourteenth Amendment. See R. Doc,

25, at 3-4a. He sought declaratory and injunctive relief

prohibiting recommendation of rehabilitative programs (and the

penalties imposed by his refusal to participate) unless he

voluntarily requested the program. See id. at 5. The district

court granted summary judgment to defendants on all claims.

Il. Standard of review

We review the district court’s grant of summary judgment

de novo. See McKnight v. Kimberly Clark Corp., 149 F.3d

1125, 1128 (10th Cir. 1998). In conducting that review, “[w]e

examine the record to determine whether any genuine issue of

material fact was in dispute; if not, we determine whether the

substantive law was applied correctly, and in so doing we

examine the factual record and reasonable inferences therefrom

in the light most favorable to the party opposing the motion.”

/d. (quotations omitted).

III. Discussion

In Lile vy McKune, 224 F.3d 1175, Nos. 98-3292, 98-3294,

2000 WL 1260284 (10th Cir. Sept. 5, 2000), we held that the

Kansas sexuai abuse treatment program for prisoners violates

the Fifth Amendment rights of inmates who are not granted

immunity, or otherwise guaranteed confidentiality, for

8a

disclosing prior sex crimes. Li/e controls in this case and

compels reversal of the district court’s summary judgment in

favor of the defendants on the Fifth Amendment issue.*

This result renders it unnecessary to reach the other issues

raised by Mr. Johnston, including the interplay between Kan

Admin. Reg. § 44-5-105(c)(1) and IMPP 11-101. However,

see Sandin v. Conner, 515 U.S. 472, 484 (1995), Meacham v.

Fano, 427 U.S. 215, 225 (1976); Templeman v. Gunter, 16

F 3d 367, 369 (10th Cir. 1994), and Bankes v. Simmons, 963

P 2d 412, 420 (Kan. 1998), comparing those cases with Lile,

2000 WL 1260284 at *6, which holds that “the compulsion

element of a Fifth Amendment claim can be established by

penalties which do not constitute the deprivation of protected

liberty interests under the Due Process Clause.” We vacate the

portion of the district court’s judgment relating to those issues

and remand to the district court with instructions to dismiss as

moot all but the Fifth Amendment claim

The judgment of the United States District Court for the

District of Kansas is REVERSED in part and VACATED in

part and the case is REMANDED for further proceedings

consistent with this order and judgment

Entered for the Court

Stephen H. Anderson

Circuit Judge

? The State does not contend that Mr. Johnston had no concern regarding

self-incrimination or that his opposition to signing up for the SATP

program was wholly on other grounds.

9a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

MARVIN W. JOHNSTON,

Plaintiff,

CIVIL ACTION

No. 97-3354-KHV

F

iled May 27, 1999

)

)

)

)

v. )

)

CHARLES SIMMONS, )

)

)

Defendant.

)

MEMORANDUM AND ORDER

This matter comes before the Court on defendant’s Motion

For Summary Judgment (Doc. # 17) filed January 21, 1999

Plaintiff brings suit under 42 U.S.C. § 1983, alleging that

defendant violated his constitutional rights by reducing his

incentive level when he refused to enter recommended

rehabilitation programs at Lansing Correctional Facility.

Plaintiff brings suit against defendant in his official capacity,

seeking injunctive and declaratory relief, as well as litigation

costs. For reasons stated below, the Court finds that

defendant’s motion is well taken and should be sustained.

Facts

Plaintiff an inmate at Lansing Correctional Facility, is

serving 35 years to life for a 1979 conviction. Around

April 18, 1989, defendant asked plaintiff to sign a program

agreement which listed various programs that he would

complete prior to parole. Plaintiff refused to sign such an

agreement. Around April 20, 1995, plaintiff again refused to

sign.

On January 1, 1996, the Department of Corrections adopted

Internal Management Policy and Procedure (“IMPP”) 11-101.

10a

IMPP 11-101 provides a system of privileges and incentives for

inmates who participate in rehabilitative programs and conduct

themselves in an appropriate manner in accordance with the

rules of Kansas correctional facilities. At the initia-tion of

IMPP 11-101, all inmates were automatically placed in Level

III, which grants the maximum allowable privileges. IMPP

11-101 provides that an inmate’s privilege level should be

automatically reduced to Level I if the inmate refuses to

participate in recommended programs at the time of the

placement screening process.

On August 21, 1996, April 29, 1997 and July 18, 1997,

defendant provided plaintiff opportunities to sign a program

agreement for enrollment in the Sex Offender Treatment

Program (“SOTP”) and other programs. Plaintiff refused to

sign such agreements, knowing that if he refused to participate,

defendant would reduce his privileges under IMPP 11-101 to

Level I, where inmate access to certain personal belongings is

restricted. As a result of plaintiff's refusal to enter into and

complete the recommended rehabilitative programs, defendant

. reduced plaintiff's incentive level under IMPP 11-101. Plaintiff

has never entered into a program plan.

The SOTP program requires inmates to sign (1) a form

stating that the program is voluntary, (2) a waiver of

confidentiality form, and (3) a written sexual history which

includes any uncharged sex crimes. An inmate must also take

a polygraph examination to verify the truthfulness of the sexual

history.

Summary Judgment Standard

Summary judgment is appropriate if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law. Fed. R. Civ. P.

56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

\.

lla

247 (1986); Vitkus v. Beatrice Co., 11 F.3d. 1535, 1538-39

(10th Cir 1993). A factual dispute is “materia!” only if it

“might affect the outcome of the suit under the governing law.”

Anderson, 477 US. at 248. A “genuine” factual dispute

requires more than a mere scintilla of evidence. /d. at 252.

The moving party bears the initial burden of showing that there

is an absence of any genuine issue of material fact. Ce/otex

Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hicks v. City of

Watonga, 942 F.2d 737, 743 (10th Cir. 1991). Once the

moving party meets its burden, the burden shifts to. the

nonmoving party to demonstrate that genuine issues remain for

trial “as to those dispositive matters for which it carries the

burden of proof.” Applied Genetics Int? Inc. v. First

Affiliated Securities, Inc., 912 F.2d 1238. 1241 (10th Cir.

1990); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith

Radio Corp., 475 U.S. 574, 586-87 (1986); Bacchus Indus.,

Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991).

The nonmoving party may not rest on its pleadings but must set

forth specific facts. Applied Genetics, 912 F.2d at 1241.

“[W]e must view the record in a light most favorable to the

parties opposing the motion for summary judgment.”

Deepwater Invs., Lid. v. Jackson Hole Ski Corp., 938 F.2d

1105, 1110 (10th Cir. 1991). Summary judgment may be

granted if the non-moving party’s evidence is merely colorable

or is not significantly probative. Anderson, 477 US. at

250-51. “In a response to a motion for summary judgment, a

party cannot rely on ignorance of facts, on speculation, or on

suspicion, and may not escape summary judgment in the mere

hope that something will turn up at trial” Conaway v. Smith,

853 F.2d 789, 793 (10th Cir. 1988). Essentially, the inquiry is

“whether the evidence presents a sufficient disagreement to

require submission to the jury or whether it is so one-sided that

one party must prevail as a matter of law.” Anderson, 477

US. at 251-52.

12a

Analysis

In his amended complaint (Doc. # 25), plaintiff brings five

claims. Plaintiff claims that defendant’s actions (1) violate the

prohibition on ex post facto laws, U.S. Const., art. 1, § 9, cl. 3,

art. 1, § 10, cl. 1; (2) penalize him for exercising his right to

freedom of speech under the First Amendment; (3) violate his

Fifth Amendment due process rights by infringing on a liberty

interest; (4) violate his nght against self-incrimination under the

Fifth Amendment; and (5) deny him due process under the

Fourteenth Amendment.

1. Ex Post Facto

“An ex post facto law is ‘any law which imposes a

punishment for an act which was not punishable at the time it

was committed; or imposes additional punishment to that then

prescribed.’” Raymer v. Enright, 113 F.3d 172, 174 (10th Cir.

1997) (quoting Weaver v. Graham, 450 U:S. 24, 28 (1981)).

In determining whether a rule violates the ex post facto clause,

the Court focuses on whether the change alters the definition

of criminal conduct or increases the penalty by which a crime

is punishable. See California Dep’t. of Corrections v.

Morales, 514 U.S. 499, 506-07 n.3 (1995).

The Court has considered plaintiff's ex post facto argument

in ruling on plaintiffs motion for preliminary injunction. See

Johnston v. Simmons, __ F. Supp. 2d_, 1999 WL 203488

(D. Kan. Mar 31, 1999). Plaintiff argues that K.S.A.

§ 75-5210a, Kansas Administrative Regulation (“K.A.R.”)

44-5-105 and IMPP 11-101 violate the prohibition on ex post

facto laws because defendant is using them to require him to

complete recommended programs as a condition of parole.

Section 75-5210a directs the Secretary of Corrections to enter

into inmate program agreements that list the programs that

particular inmates must complete to be prepared for release on

parole. Section 22-3717(g)(2) states that to be eligible for

parole, an inmate must complete the programs listed in his

l3a

progiam agreement under Section 75-5210a. Plaintiff argues

that such programs were not a condition for parole when he

entered prison in 1979 and that defendant has increased his

penalty by adding requirements for parole that could lengthen

his sentence. Neither Section 22-3717 nor Section 75-5210a

applies to plaintiff; however, because plaintiff was incarcerated

in 1979 and the Kansas legislature enacted these provisions in

1988. Under Kansas law, the statutes are not retroactive. See

Payne v. Kansas Parole Bd., 20 Kan. App. 2d 301, 304, 887

P.2d 147, 151 (1994).

Plaintiff argues that defendant is coercing him into signing

a program plan under K.A.R. 44-5-105. Under K.AR.

44-5-105, inmates who are not covered by the requirements of

Section 75-5210a can voluntarily enter into a program plan.

See K.A.R. 44-5-105(c)(1). Plaintiff argues that defendant

equates program plans under K.A.R. 44-5-105 and program

agreements under Section 75-5210a. Plaintiff therefore

reasons that if he signs a program plan, he will not be eligible

for parole until he completes the programs listed in the plan.

See K.S.A. § 2217 17(g)(2).

As plaintiff concedes, however, a program plan under

K.A.R. 44-5-105 is voluntary. Plaintiff is not required to enter

into a program plan. Plaintiff apparently argues that his choice

is not truly voluntary because he is forced to choose between

signing a program plan or losing his privileges under IMPP

11-101. Plaintiff however, retains the power to choose

whether to enter into a program plan. While his refusal has

resulted in the loss of privileges under IMPP 11-101, this loss

is not an ex post facto violation. See Johnston, 1999 WL

203488 at *3 (citing Maberry v. McKune, 24 F. Supp. 2d

1222, 1228 (D. Ken. 1998); Vinson v. McKune, 265 Kan. 422,

426, 960 P.2d 222, 224-25 (1998); Nemechek v. McKune, 24

Kan. App. 2d 72, 75, 941 P.2d 952, 954 (1997)). Plaintiff

does not allege that IMPP 11-101 affects his eligibility for

parole. His sentence is therefore no different than it was before

l4a

_

defendant applied IMPP 11-101. Plaintiff therefore has not

shown a current injury for purposes of the ex post facto clause.

The Court reiterates its earlier statement that

[e]ven if defendants want plaintiff to sign a program plan,

they have not required him to sign a plan. They have merely

taken away his privileges for his refusal. Defendants have

allowed plaintiff to make his own choice whether to sign a

program plan. So long as plaintiff continues to fight the

good fight (from his perspective) and refuses to sign a

program plan, the law recognizes no ex post facto problem.

Johnston, 1999 WL at *4.' Because defendant’s actions do

not violate the ex post facto clause, defendant is entitled to

summary judgment on plaintiff's ex post facto claim.

2. Due Process’

“The Fourteenth Amendment prohibits any State from

depriving a person of life, liberty, or property without due

process of law.” Perkins v. Kansas Dep 't of Corrections, 165

F 3d 803, 808 (10th Cir. 1999) (quoting Meachum v. Fano,

427 U.S. 215, 223 (1976)). A prisoner’s liberty interests may

arise either from the.Due Process Clause itself or from state

law. /d. Plaintiff argues that K AR. 44-5-105 conveys a

liberty interest which entitles plaintiff to remain free .of any

requirement to complete rehabilitative programs. Even if

K.A.R. 44-5-105 gave plaintiff such a right, the Court finds

that this right does not constitute a constitutionally-protected

' At the time of our earlier decision, plaintiff's complaint named two

defendants.

> Plaintiff's complaint brings separate procedural due process claims

under the Fifth and Fourteenth Amendments. Courts apply the same

standards to both, however, and the Court therefore treats both claims as

one for purposes of this motion. See Doyle v. Oklahoma Bar Ass'n, 998

F.2d 1559, 1567 n.5 (10th Cir. 1993); Packerware Corp. v. B&R

Plastics, Inc., 15 F. Supp. 2d 1074, 1077 (D. Kan. 1998).

1Sa

liberty interest. To implicate due process, state-created liberty

interests are “generally limited to freedom from restraint which,

while not exceeding the sentence in such an unexpected manner

as to give rise to protection by the Due Process Clause of its

own force, nonetheless imposes atypical and significant

hardship on the inmate in relation to the ordinary incidents of

prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). In

Stansbury v. Hannigan, 265 Kan. 404, 960 P.2d 227 (1998),

the Kansas Supreme Court determined that application of

IMPP 11-101 did not constitute an atypical and significant

hardship on inmates. /d. at 421, 960 P.2d at 238. The Court

agrees with the reasoning and analysis in Stansbury and finds

that defendant’s application of IMPP 11-101 to plaintiff did not

violate due process, regardless of any rights he had under

K.AR. 44-5-105. See also Gilmore v. McKune, 23 Kan. App.

2d 1029, 1037, 940 P.2d 78, 84 (1997) (imposing penalty

contrary to K.A.R. 44-5-105 permissible when penalty does

not violate due process). Defendant is therefore entitled to

summary judgment on plaintiffs due process claim.

3. Freedom of Speech

Plaintiff argues that his refusal to enter into a program plan

constitutes protected speech under the First Amendment. The

First Amendment protects the communication of ideas. Bee v.

Greaves, 744 F.2d 1387, 1393-94 (10th Cir. 1984). Therefore,

to implicate plaintiff's free speech rights, plaintiff must express

an idea. See Junger v. Daley, 8 F. Supp. 2d 708, 716 (N.D.

Ohio 1998). Plaintiff alleges that his speech consisted of

refusing to say “yes” to requests that he sign a program plan.

While plaintiff's actions may have contained a speech

element, plaintiff does not allege that he expressed any idea to

defendant, other than simply refusing to participate. The Court

does not believe that plaintiff's refusal to participate in the

SOTP, whether communicated through speech or through

conduct, merits First Amendment scrutiny in this context. As

the Supreme Court has noted, “[iJt is possible to find some

l6a

kernel of expression in almost every activity a person

undertakes—for example, walking down the street or meeting

one’s friends at the shopping mall—but such a kernel is not

sufficient to bring the activity within the protection of the First

Amendment.” City of Dallas v. Stanglin, 490 U.S. 19, 25

(1989). To determine whether plaintiffs refusal to participate

implicates his nght to free speech, we must determine whether

the refusal constituted “activity [which] was sufficiently imbued

with elements of communication.” Spence v. Washington, 418

U.S. 405, 409 (1974).

It is not enough to simply show that plaintiff intended to

communicate an idea. “We cannot accept the view that an

apparently limitless variety of conduct can be labeled ‘speech’

whenever the person engaging in the conduct intends thereby

to express an idea.” United States v. O’Brien, 391 U.S. 367,

376 (1968). For the First Amendment to apply to plaintiff's

conduct, plaintiff must show both (1) an intent to convey a

particularized message and (2) based on the surrounding

circumstances, a great likelihood that prison officials would

understand plaintiff's message. Spence, 418 US. at 411.

Plaintiff does not allege that he intended to communicate any

message to prison officials by refusing to participate in the

SOTP program. Even if the Court assumes that plaintiff meant

to convey deep opposition to the lawfulness of the program,

his method of communicating this message—simply refusing to

participate—does not suggest a great likelihood that prison

officials would understand his meaning. The Court therefore

finds that plaintiff's refusal to participate in the SOTP program

did not implicate his nght to free speech. Defendant is entitled

to summary judgment on plaintiff's freedom of speech claim.’

* Plaintiff also argues that the application of IMPP 11-101 ae an

unconstitutional condition because it requires him to choose between his

right to free speech and the benefit of not losing his privileges. Because

the Court finds that plaintiff's free speech rights are not implicated by his

refusal to participate in the SOTP, plaintiff was not forced to choose

17a

4. Self-Incrimination

Plaintiff claims that defendant’s application of IMPP 11-101

violates his Fifth Amendment right not to incriminate himself

Defendant reduced plaintiffs privileges under IMPP 11-101

because of plaintiff's refusal to enter the SOTP. As part of the

sex offender program, participants must admit their sexual

history, including any uncharged sex crimes. Inmates must

then take a polygraph examination to ascertain the truthfulness

of that history.

Two recent cases have addressed the incriminatory nature of

the SOTP’s requirements. In Bankes v. Simmons, 265 Kan.

341, 963 P.2d 412 (1998), the Supreme Court of Kansas found

that the required admissions in the SOTP would violate

plaintiff's right against self-incrimination if the state used

plaintiff s admissions in a later criminal proceeding. /d. at 341,

963 P.2d at 419-20. There, plaintiff was forced to either admit

his guilt or serve a longer sentence, because defendant withheld

good time credits as a result of plaintiff's refusal to participate.

Id. at 341, 963 P.2d at 420. The Kansas Supreme Court

found, however, that the application of IMPP 11-101 to reduce

plaintiff s incentive level, based on his refusal to participate, did

not violate plaintiff's right against self-incrimination. /d.

Likewise, defendant points the Court to Kirkpatrick v.

Simmons, Case No. 1996-3140-MLB, where the Honorable -

Monti L. Belot adopted the report and recommendation of

Magistrate Karen M. Humphreys. In that case, Magistrate

Humphreys found that because plaintiff's participation in the

SOTP program was voluntary, plaintiffs right against self-

incrimination was not infringed, despite defendant’s use of

between his constitutional right and retaining his favorable incentive

level. The doctrine of unconstitutional conditions does not apply. See

Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998) (constitutional

right must be present before doctrine can apply).

18a

IMPP 11-101 to reduce plaintiff's incentive level. Report &

Recommendation (Doc. #25) filed June 12, 1998. Other

courts have found that because of their voluntary nature,

similar programs do not violate the right against self-

incrimination. See Amen-Ra v. Department of Defense, 961 F.

Supp. 256 (D. Kan. 1997); Russell v. Eaves, 722 F. Supp. 558,

560 (E.D. Mo. 1989).

In Lile v. McKune, 24 F. Supp. 2d 17152 (D. Kan. 1998),

the Honorable Dale E. Saffels ruled exactly opposite of Bankes

and Kirkpatrick, finding that application of IMPP 11-101 to an

inmate who refuses to participate in the SOTP constitutes

sufficient compulsion as to violate the inmate’s right against

self-incrimination. See Lile, 24 F. Supp. 2d at 1159. In the

Court’s view, Ohio Adult Parole Authority v. Woodard, 523

U.S. 272, 118 S. Ct. 1244 (1998), is highly instructive on the

issue. There, a death row inmate was forced to either confess

his guilt or face a reduced chance at clemency. The United

States Supreme Court, however, rejected his Fifth Amendment

claim, finding that the possible adverse consequences were not

sufficient compulsion for purposes of the Fifth Amendment

because the inmate retained his right to choose, and any

incrimination was therefore voluntary. /d. at 1252-53,

One might argue that the Supreme Court in Woodard

literally forced plaintiff to choose between life or death. It

assumed that plaintiff's silence would result in a denial of

clemency. /d. at 1253. Plaintiff could remain silent, yet lose

any hope of clemency. On the other hand, he could confess his

guilt in the hope of clemency. Even though the decision had

extreme consequences, the Supreme Court found that it did not

implicate plaintiff's right against self-incrimination because

plaintiff retained the choice to incriminate himself or remain

silent. /d.

The Court recognizes that Judge Saffels found that

Woodard was consistent with his view that IMPP 11-101 was

sufficient compulsion. See Lile, 24 F. Supp. 2d at 1158. Judge

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19a

Saffels based this opinion on the fact that plaintiff in Woodard

apparently suffered no additional penalty by rejecting the

clemency hearing. See Li/e, 24 F Supp. 2d at 1158. It is true

that plaintiff in Woodard did not face a possible loss of

privileges and benefits, but he was still faced with loss of his

life. If such a choice is not sufficient compulsion to make

incriminating statements involuntary, the application of IMPP

11-101, even in its most severe application, can hardly be

sufficient.’ Because plaintiff retained the right to choose

whether to enter the SOTP, its requirements do not violate his

right against self-incrimination, despite the reduction in

privileges caused by IMPP 11-101. Defendant is therefore

entitled to summary judgment on plaintiff's self-incrimination

claim

IT IS THEREFORE ORDERED that defendant's Motion

For Summary Judgment (Doc. # 17) filed January 21, 1999 be

and hereby is SUSTAINED

Dated this 26th day of May, 1999 at Kansas City, Kansas.

Kathryn H. Vratil

United States District Judge

* The Court notes that the grant of clemency is speculative, while the

application of IMPP 11-101 is practically certain. The speculative nature

of clemency, however, is not enough to convince the Court that IMPP

11-101 presents a more compulsive force when an inmate decides whether

to incriminate himself.

5

As noted above, the application of IMPP 11-101 is not an

unconstitutional condition, because plaintiffs mght against self-

incrimination never arises due to the voluntary nature of the SOTP. See

Woodard, 118 S. Ct. at 1252.