UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MARVIN W. JOHNSTON,

Plaintiff-Appellant,

v.

CHARLES SIMMONS, Secretary of Corrections, and DAVID MCKUNE,

Defendants-Appellees.

No. 99-3193

(D.C. No. 97-CV-3354-KHV)

(D. Kan.)

ORDER AND JUDGMENT*

Before TACHA, ANDERSON, and LUCERO, Circuit Judges.

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 "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) 11-101, 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)(1), however, IMPP 11-101 provides for reduction to Level I 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).1 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 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 id. 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." Id. 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. 1 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 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 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.

II. 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." Id. (quotations omitted).

III. Discussion

In Lile v. McKune, 224 F.3d 1175, Nos. 98-3292, 98-3294, 2000 WL 1260284 (10th Cir. Sept. 5, 2000), we held that the Kansas sexual abuse treatment program for prisoners violates the Fifth Amendment rights of inmates who are not granted immunity, or otherwise guaranteed confidentiality, for disclosing prior sex crimes. Lile controls in this case and compels reversal of the district court's summary judgment in favor of the defendants on the Fifth Amendment issue.2

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