Ainsworth v. Risley

Decision Date14 December 2000
Docket NumberNo. 00-1678,00-1678
Citation244 F.3d 209
Parties(1st Cir. 2001) WAYNE AINSWORTH, et al., Plaintiffs, Appellants, v. HENRY RISLEY, COMMISSIONER, NEW HAMPSHIRE DEPARTMENT OF CORRECTIONS, Defendant, Appellee. Heard
CourtU.S. Court of Appeals — First Circuit

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Michael J. Sheehan for appellants.

Andrew B. Livernois, Attorney, New Hampshire Civil Bureau, with whom Philip T. McLaughlin, Attorney General, New Hampshire was on brief, for appellee.

Before Torruella, Chief Judge, Boudin, and Lipez, Circuit Judges.

LIPEZ, Circuit Judge.

A group of convicted sex offenders claim, pursuant to 42 U.S.C. § 1983, that the New Hampshire Department of Corrections violated their Fifth Amendment right against self-incrimination by requiring them to disclose their histories of sexual misconduct to participate in a sex offender treatment program. The plaintiffs argue that the required disclosures are incriminating because they could lead to future prosecutions or perjury charges, or could affect ongoing appeals. They argue that the disclosures are compelled because completion of the treatment program is a de facto requirement for parole and for maintaining residence in desired prison housing. The district court granted the defendant's motion to dismiss, finding that the plaintiffs failed to state a cognizable Fifth Amendment claim. We affirm.

I.

The facts in this case generally are not disputed. The plaintiffs are 23 inmates in the New Hampshire State Prison who have been convicted of sex offenses. As sex offenders, they may apply for the prison's Sexual Offender Program (SOP), instituted in 1986. According to its mission statement, the SOP seeks to "ensure community safety and protection" by preventing recidivism. The program is designed to "address sexual addiction," "help offenders understand the thoughts, feelings and behaviors which precede their offense," and "develop relapse prevention skills." To that end, the SOP provides residential therapy to 60 inmates a year.1 Participants live together in a dorm and receive 10 to 15 hours of treatment a week for 12 to 16 months. Treatment includes community meetings, social skills training groups clinical groups, and a year-long structured workbook series.

Inmates must apply to the SOP to be admitted. Applicants are placed on a waiting list. Within two years of the earliest date on which an applicant could receive parole, two SOP staff members assess his eligibility for the program. Selection criteria include an applicant's willingness to admit his offense and accept responsibility for it. "If an applicant appears open and honest, recognizes he has a serious problem and is committed to changing his behavior, he is approved for programming." The program bases these requirements on the belief that sex offenders must recognize past misconduct before effective treatment can begin.

Inmates who are accepted by the SOP must sign a "treatment contract." Provisions of the contract include: "I agree to be complete [sic] open and honest and assume full responsibility for my offenses and my behavior;" and "I understand that I have committed a sexual crime and I will be required to discuss and complete assignments regarding my sexual history/deviancy. I may be required to answer many questions about my sexual past and my current sexual behavior." Inmates also agree to release any information about past behavior sought by program staff, and, if necessary, to take a lie detector test "to ensure full disclosure of offending history." Finally, SOP participants must sign a waiver of confidentiality. The waiver states, in relevant part:

I have been informed that any staff member at N.H. State Prison is required by law to report to the appropriate authorities, including but not limited to, the County Attorney's Office, the State Police, Local Police, Division for Children and Youth Services and Probation Department, any actual or suspected sexual offense of a specifically identifiable victim, regardless of how the staff member gains knowledge of such occurrence or potential occurrence.

The SOP rejects inmates who refuse to comply with the terms of the treatment contract or to sign a confidentiality waiver. The program also generally deems inmates whose cases are on appeal unsuitable for treatment because they have not acknowledged responsibility for their crime of conviction.

Lance Messinger, director of the SOP, testified about the disclosure requirements at a hearing on the plaintiffs' petition for injunctive relief. Messinger said that SOP staff members do not require applicants to identify other victims whose names have not already been reported, and that they discourage them from providing specific information that could be incriminating. However, Messinger said that if staff members already have information about an offense with which the applicant has not been charged, they press the applicant to admit to that offense. Such information usually comes from an inmate's presentence report and may concern allegations about an additional victim. Any admissions of uncharged conduct that an inmate makes must be reported to police and prosecutors. Messinger said that he has tried on a case-by-case basis to win immunity from prosecution for specific SOP participants, with limited success. Messinger said that he remembered one case within the last ten years in which the county attorney prosecuted a case based on admissions made through the SOP.

The individual plaintiffs in this case have had a variety of experiences with the SOP. Some of the plaintiffs have not applied for the SOP because of the required disclosures. Others have applied and were rejected because they refused to admit to their crime of conviction, because their case was on appeal, or because they refused to admit to an uncharged offense involving an additional victim.2

A few of the plaintiffs must complete the SOP as a condition of their sentence. The majority, however, applied for the program for two reasons. First, completion of the SOP is generally, though not always, required before sex offenders receive parole. At the preliminary injunction hearing, an official from the New Hampshire Adult Parole Board testified that to date 97 to 98 percent of the sex offenders who received parole had completed the SOP. Second, sex offenders who do not complete the SOP often are transferred from South Unit to Hancock Building. Both South and Hancock are medium security units, but the plaintiffs view South as preferable housing. South has two-man cells, 24-man pods, extensive outdoor privileges, and houses mainly sex offenders. Hancock has eight-man cells, 96-man pods, only one hour of outdoor access, and houses mainly drug and violent offenders. The plaintiffs testified that South is a safer unit for sex offenders, and some of them said they had been assaulted or hassled at Hancock. They also point out that transfers to Hancock are used to punish South inmates who commit minor disciplinary offenses.

The plaintiffs filed this action as a petition for declaratory and injunctive relief. A magistrate judge held a hearing on the petition and recommended that the court grant a preliminary injunction enjoining the defendant from making admission of uncharged criminal conduct a condition of participation in the SOP, unless the plaintiffs received immunity from use of their admissions in future prosecutions. The district court rejected the magistrate judge's recommendation and granted the defendant's motion to dismiss for failure to state a claim, finding that the plaintiffs had failed to establish that the prison's policies violated the Fifth Amendment privilege against self-incrimination.

Normally, a motion to dismiss for failure to state a claim is based only on the pleadings. See Fed R. Civ. Proc. 12(b)(6). In this case, the district court had before it evidence developed at the preliminary injunction hearing. See Developmental Disabilities Advocacy Center, Inc. v. Melton, 689 F.2d 281, 282 (1st Cir. 1989). Both the court and the parties repeatedly referred to this evidence, effectively converting the motion to dismiss to a motion for summary judgment. Fed. R. Civ. Proc. 12(b)(6) ("If, on a motion . . . to dismiss for failure . . . to state a claim . . . matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment."). We thus review the district court's decision according to summary judgment standards, considering the facts and all reasonable inferences to be drawn from them in the light most favorable to the nonmoving party. See F.D.I.C. v. Kooyomjian, 220 F.3d 10, 13-14 (1st Cir. 2000). The moving party prevails if there is no genuine dispute as to any material fact and the party is entitled to judgment as a matter of law. See Fed. R. Civ. Proc. 56(c). Our review is de novo. See Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990).

II.

The Fifth Amendment prevents any person from being "compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. The Amendment's self-incrimination clause applies to the states through the Fourteenth Amendment. See Spevack v. Klein, 385 U.S. 511, 514 (1967). The protection against self-incrimination extends beyond criminal investigations, privileging a witness "not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings." Lefkowitz v. Turley, 414 U.S. 70, 77 (1973). A criminal defendant who has been convicted retains the privilege after imprisonment as long as his testimony may be used against him in a future trial for a crime of which he has not yet been convicted. See Mitchell v. United States, 526 U.S. 314, 325 (19...

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