Wirsching v. Colorado, No. 00-1437.

• Decision Date: 19 February 2004
• Docket Number: No. 00-1437.
• Citation: 360 F.3d 1191
• Parties: Charles Joseph WIRSCHING, Plaintiff-Appellant, v. State of COLORADO; Bill Owens, Governor; and The Colorado Department of Corrections and All Agents Thereof, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

360 F.3d 1191

Charles Joseph WIRSCHING, Plaintiff-Appellant, v. State of COLORADO; Bill Owens, Governor; and The Colorado Department of Corrections and All Agents Thereof, Defendants-Appellees.

No. 00-1437.

United States Court of Appeals, Tenth Circuit.

February 19, 2004.

Robert Foster, University of Denver College of Law, Denver, CO, (Stephen Cribari and Megan Curtis, University of Denver College of Law, with him on the briefs) for the Plaintiff-Appellant.

Paul S. Sanzo, First Assistant Attorney General, State of Colorado (Ken Salazar, Attorney General of Colorado and Joseph P. Sanchez, Assistant Attorney General with him on the briefs), for the Defendants-Appellees.

Before HENRY and McKAY, Circuit Judges, and OBERDORFER, Senior District Judge.^*

HENRY, Circuit Judge.

Charles Joseph Wirsching appeals the district court's order granting summary judgment against him and in favor of the defendants on his 42 U.S.C. § 1983 civil rights claim. Mr. Wirsching, who until April 25, 2003 was incarcerated by the Colorado Department of Corrections (CDOC) on a conviction for sexual assault of a minor, alleges that CDOC officials violated his constitutional rights by directing him to participate in a sexual offender treatment program requiring him to admit that he had committed the assault and by imposing certain adverse consequences upon him when he refused to participate. In particular, Mr. Wirsching contends that the CDOC officials' refusal to allow visitation with his minor child violated the First and Fourteenth Amendments. He further contends that, by depriving him of opportunity to earn good time credits at the higher rate available to prisoners who participated in the treatment program, CDOC officials violated the Fifth Amendment's prohibition against compelling self-incriminating testimony. Mr. Wirsching also asserts that CDOC officials violated the Double Jeopardy Clause of the Fifth Amendment as well as the Eighth Amendment, Ninth Amendment, and the Due Process and Equal Protection clauses of the Fourteenth Amendment.

We begin our analysis by considering two threshold issues: (1) whether Mr. Wirsching's release from prison renders his claims moot; and (2) whether Mr. Wirsching has waived the right to appeal by failing to object to the magistrate's recommendation to enter summary judgment against him. As to the first issue, we conclude that Mr. Wirsching's release from prison moots his claims for declaratory and injunctive relief but not his claims for damages. As to the second issue, we conclude that in spite of Mr. Wirsching's failure to object to the magistrate's report and recommendation, the interests of justice warrant our consideration of the merits of this appeal.

On the merits of Mr. Wirsching's damages claims, we conclude that the district court properly granted summary judgment to the defendant CDOC officials. In particular, with regard to Mr. Wirsching's challenge to the denial of visitation with his minor child, we hold that Mr. Wirsching has failed to establish that prison officials violated his rights under the First and Fourteenth Amendments. We base that conclusion primarily upon the deference we afford to prison administrators in these matters, see Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), as well as the evidence offered by CDOC officials in support of the policy of restricting Mr. Wirsching's visitation privileges. As to Mr. Wirsching's Fifth Amendment compulsion claim, we apply the Supreme Court's decision in McKune v. Lile, 536 U.S. 24, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002) and conclude that the consequences of Mr. Wirsching's refusal to admit that he had committed a sexual assault were not so severe as to likely compel him to be a witness against himself. Finally, we hold that Mr. Wirsching's remaining claims also lack merit.

I. BACKGROUND

The relevant facts are not in dispute. In 1997, Mr. Wirsching pleaded guilty in the District Court of El Paso County, Colorado to a charge of attempted sexual assault of a child. The court sentenced Mr. Wirsching to eight years' incarceration. Mr. Wirsching had previously been convicted of second-degree assault.

The Colorado Department of Corrections has a treatment program for sex offenders. Following Mr. Wirsching's incarceration, prison staff recommended that he participate in the program. One of the requirements for participation is that the inmate admit that he has engaged in the conduct that led to his classification as a sex offender.² Mr. Wirsching refused to admit that he had engaged in the sexual assault of which he had been convicted. As a result, prison officials did not admit him into the treatment program.

CDOC regulations provide that inmates who refuse to participate in labor, educational, or work programs, or who refuse to undergo recommended treatment programs are placed on Restricted Privileges Status. Here, that status affected Mr. Wirsching as follows: (1) he could not have a television or a radio in his cell; (2) he could not use tobacco; (3) he had no canteen privileges; (4) certain personal property was removed from his cell; (5) he could not engage in recreation with other prisoners; and (6) he was required to wear orange pants.

Mr. Wirsching's refusal to participate in the treatment program also affected his opportunity to earn good time credits. Under a Colorado statute, inmates are entitled to earn these credits at the highest rate (ten days for each month of incarceration) only if they "progress towards the goals and programs established by the Colorado diagnostic program." Col.Rev. Stat. § 17-22.5-405. Under this provision, it appears that Mr. Wirsching's refusal would constitute a lack of progress in the view of CDOC officials.

Finally, Mr. Wirsching's Restricted Privileges Status also limited his visitation with family members. When Mr. Wirsching asked that his three-year old daughter be allowed to visit him in prison, CDOC officials denied his request. They invoked the following regulation:

Visitors will be excluded from the visiting list with authorization from the Administrative Head if they:

a. Are the victim of the sex offender they are attempting to visit, except under circumstances approved in advance and in writing by the sex offender treatment staff;

b. Are under the age of eighteen (18) visiting an offender who has been convicted at any time of sexual assault on a child, incest, or aggravated incest unless approved in advance and in writing by the sex offender treatment staff;

c. Are victims of the offender or are children under the age of eighteen (18) years of age, if such visits would be contrary to the rehabilitation of the offender as documented by mental health staff who will evaluate the offender and make recommendations regarding visits which may be detrimental to the offender's rehabilitation.

d. Sex offenders who have perpetrated against children shall not loiter near children in the visiting room or participate in any volunteer activity that involves contact with children except under circumstances approved in advance and in writing by the sex offender treatment staff.

Rec. doc. 28, attach. 3 (Admin.Reg.300-01) ¶ (IV)(A)(8). According to the CDOC officials, Mr. Wirsching's refusal to participate in the treatment program for sex offenders meant that they could not properly evaluate him to determine if his daughter's visits would be "detrimental to [his] rehabilitation." Id. (Admin.Reg.300-01(IV)(A)(8)(c)). They denied his continuing requests for visitation privileges with his daughter.

Proceeding pro se, Mr. Wirsching filed this civil rights action alleging that the CDOC's refusal to allow visitation with his children violated his right to familial association under the First Amendment, his Fifth Amendment right against double jeopardy, his Eighth Amendment right to be free from cruel and unusual punishment, his Ninth Amendment rights, and his right to due process and equal protection under the Fourteenth Amendment. He also asserted that the denial of visitation privileges and the denial of the opportunity to earn good time credits at the higher rate available to other prisoners constituted an impermissible punishment for his refusal to incriminate himself. According to Mr. Wirsching, this punishment violated the Fifth Amendment's Self-Incrimination Clause.

In his request for relief, Mr. Wirsching asked the court "to issue an Order granting him and all future prisoners equal rights and privileges as ... afforded to other inmates." Rec. doc. 3, at 6 (Complaint filed Aug. 26, 1998). He also requested an "Order granting him relief from Sentence and Judgment of Conviction, and such other relief as this Court may deem appropriate." Id. In a subsequent pleading, Mr. Wirsching requested damages. See Rec. doc 40, at 14.

The defendant CDOC officials filed a motion for summary judgment on all of Mr. Wirsching's claims. A magistrate judge issued a recommendation concluding that summary judgment to the defendants was warranted. Mr. Wirsching did not file an objection to the recommendation, and the district court then adopted the recommendation and entered judgment for the defendants.

Proceeding pro se, Mr. Wirsching appealed the grant of summary judgment against him. This Court appointed counsel for Mr. Wirsching and then asked for supplemental briefing regarding the Supreme Court's decision in McKune v. Lile, 536 U.S. 24, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002). Following the oral argument in this case, Mr. Wirsching's counsel informed the court that, on April 25, 2003, Mr. Wirsching was released from incarceration.

II. DISCUSSION

On appeal, Mr. Wirsching challenges the district court's grant of summary judgment as to all of his claims. We review the grant of summary judgment de novo, applying the same standard as the district court pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. See United States v. AMR Corp., 335 F.3d 1109, 1113 (10th Cir....