Entzi v. Redmann

• Decision Date: 04 May 2007
• Docket Number: No. 06-2116.,06-2116.
• Citation: 485 F.3d 998
• Parties: Bruce ENTZI, Plaintiff/Appellant, v. Don REDMANN, Ken Sorenson, Kevin Arthaud, Leann K. Bertsch, Brian Deeher, Brenda Ross, Melanie Flynn, Stewart Baumgartner, Clyde St. Claire, Jason Komrosky, Gerald Maragos, Patrick Altringer, Virginia Kleven, Elaine Little, Tim Schuetzle, Defendants/Appellees. Dean McIlroy, Defendant, Jeff Wagner, Tammy Hannesson, Renell Henke, Denise Senger, Cathy Jensen, Rick Barman, Patrick Bohn, Defendants/Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

485 F.3d 998

Bruce ENTZI, Plaintiff/Appellant, v. Don REDMANN, Ken Sorenson, Kevin Arthaud, Leann K. Bertsch, Brian Deeher, Brenda Ross, Melanie Flynn, Stewart Baumgartner, Clyde St. Claire, Jason Komrosky, Gerald Maragos, Patrick Altringer, Virginia Kleven, Elaine Little, Tim Schuetzle, Defendants/Appellees Dean McIlroy, Defendant Jeff Wagner, Tammy Hannesson, Renell Henke, Denise Senger, Cathy Jensen, Rick Barman, Patrick Bohn, Defendants/Appellees.

No. 06-2116.

United States Court of Appeals, Eighth Circuit.

Filed: May 4, 2007.

Submitted: December 15, 2007.

Chad R. McCabe, argued, Bismarck, ND, for appellant.

Jean R. Mullen, argued, Asst. Attorney General, Bismarck, ND, for appellee.

Before BYE, COLLOTON, and BENTON, Circuit Judges.

COLLOTON, Circuit Judge.

Bruce Entzi appeals the district court's¹ adverse grant of summary judgment and judgment on the pleadings in his civil rights suit. We affirm.

I.

In 1999, a North Dakota jury convicted Entzi of gross sexual imposition, in violation of N.D. Cent.Code § 12.1-20-03(2)(a), for sexual contact with his two daughters. The court sentenced Entzi to a term of ten years' imprisonment, with five of those years suspended, and a term of supervised probation. As a condition of his probation, the court ordered Entzi to undergo sex offender treatment while in prison. On direct review, the North Dakota Supreme Court upheld Entzi's conviction. State v. Entzi, 615 N.W.2d 145 (N.D.2000). On January 22, 2004, Entzi filed an application for state post-conviction relief. The state court dismissed most of Entzi's claims, and Entzi voluntarily withdrew the others. About a month later, Entzi petitioned for a writ of habeas corpus in federal court. The district court dismissed the petition as untimely. He later brought this suit alleging constitutional violations arising from his refusal to participate in the prison's treatment program for sex offenders and from the asserted inadequacy of prison library services.

While in prison, Entzi refused to comply with the state court's order that he report to the "Sex Offender Education Class" as a condition of probation. Because Entzi maintained his innocence, he argued that requiring him to attend the class would compel him to "be a witness against himself" in violation of the Fifth Amendment.

The program consisted of two courses of instruction, each designed to rehabilitate convicted sex offenders. The first course was the "education phase," which the Director of the Department of Corrections, Elaine Little, described as a "video and workbook series." The program's second phase required participants "to be honest about their victimization and work to lose their denial." This part of the program required that participants admit guilt to the offense of conviction. Entzi refused to participate in either phase, maintaining his innocence and arguing that because he had testified in his own defense at trial, an admission of guilt could subject him to a prosecution for perjury. Because of Entzi's refusal to attend the court-ordered treatment sessions, prison officials suspended performance-based sentence reductions that would have shortened Entzi's prison term. See N.D. Cent.Code 12-54.1-01. Entzi alleges that as a result, his term of imprisonment was extended by over a year.

Several days before Entzi's scheduled release from prison, his probation officer, Patrick Bohn, filed a petition to revoke probation based on Entzi's failure to complete this sex offender treatment. On September 3, 2004, the state trial court dismissed Bohn's petition, because it thought the requirement that Entzi admit his guilt during treatment "violates the 5th Amendment right to be free from self-incrimination" and also "violates common sense." (App. at 60). Entzi subsequently filed a suit for damages against Bohn and a group of prison officials.

II.

Entzi's complaint makes several allegations relating to his imprisonment. He advances only three arguments on appeal. First, Entzi contends that Bohn violated Entzi's privilege against self-incrimination by filing a petition to revoke his probation based on Entzi's failure to complete the treatment program. Second, Entzi argues that prison officials unconstitutionally suspended his right to earn performance-based sentence-reduction credits under North Dakota law because of his refusal to attend the sex-offender classes. Third, Entzi argues that the prison officials did not provide sufficient access to the prison's library, and that the library was so inadequate as to deprive Entzi of his right of access to the courts.

A.

Entzi contends that his probation officer, Bohn, compelled Entzi "to be a witness against himself" by filing the petition to revoke probation. The district court granted Bohn's motion for summary judgment, concluding that Entzi had failed to prove any injury and that absolute immunity shielded Bohn from suit. We review the district court's grant of summary judgment de novo, viewing the evidence in the light most favorable to Entzi. Walker v. Bonenberger, 438 F.3d 884, 888 (8th Cir. 2006).

Entzi's pro se complaint alleges that Bohn violated Entzi's rights under the Due Process Clause by failing to give advance notice of the parole revocation petition. Entzi raised an argument based on the privilege against self-incrimination for the first time in response to the defendants' motions for summary judgment. The district court rejected Entzi's claims against Bohn because it could not "understand how any of this was improper or prejudiced or injured Entzi in any way." (R. Doc. 167, at 28). The court also ruled that absolute immunity barred the suit against Bohn, because bringing a parole revocation petition "is in the nature of a prosecutorial function." (Id. at 28) (citing Figg v. Russell, 433 F.3d 593, 599 (8th Cir.2006)).

On appeal, Entzi characterizes his claim against Bohn as involving a violation of the self-incrimination clause, rather than a violation of his right to procedural due process under the Fourteenth Amendment. Entzi contends that the filing of the revocation petition violated his rights under the Fifth Amendment (as incorporated by the Fourteenth), and required him to expend legal fees to defeat the petition in state court. Assuming Entzi's filings in the district court, construed generously, properly bring this Fifth Amendment claim before us, and assuming for the sake of argument that Bohn is not entitled to absolute immunity for his filing of the petition, compare Ray v. Pickett, 734 F.2d 370, 374 (8th Cir.1984), with Anton v. Getty, 78 F.3d 393, 396 n. 5 (8th Cir.1996), we conclude that the claim has no merit.

The Fifth Amendment provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." Entzi does not allege that he was compelled by the petition to be a "witness" against himself "in a criminal case." Rather, Entzi argues that by petitioning to revoke probation, Bohn penalized Entzi for asserting the privilege, see Lefkowitz v. Cunningham, 431 U.S. 801, 805, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977), and that this penalty amounted to unconstitutional compulsion.

The Supreme Court in McKune v. Lile, 536 U.S. 24, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002), held that a State may deny certain benefits or impose certain penalties on sex offenders who refuse to participate in a sex offender treatment program and admit prior offenses, so long as the consequences for failing to participate are not so great as to constitute unconstitutional "compulsion." 536 U.S. at 41, 122 S.Ct. 2017 (plurality opinion); id. at 49, 122 S.Ct. 2017 (O'Connor, J., concurring). Whether or not revocation of probation itself might be said to "compel" incriminating admissions, cf. United States v. Antelope, 395 F.3d 1128, 1139 (9th Cir.2005), the mere filing of a petition to revoke probation, in response to Entzi's refusal to participate in sex offender treatment, is not a consequence serious enough to compel him to be a witness against himself in violation of the Fifth Amendment. See McKune, 536 U.S. at 36-42, 122 S.Ct. 2017 (plurality opinion); id. at 50-51, 122 S.Ct. 2017 (O'Connor, J., concurring in the judgment). Entzi was directed to discuss his offenses of conviction for a legitimate rehabilitative purpose, and the state court nonetheless declined to revoke Entzi's probation based on his refusal to participate in that rehabilitation. The only negative consequence alleged to have arisen from Bohn's action is that Entzi compensated an attorney to litigate the revocation matter. And even that consequence was incurred only because Entzi elected to decline court-appointed counsel paid by the State. The impact of Bohn's action on Entzi was not nearly so great as to constitute compulsion for purposes of the self-incrimination clause of the Fifth Amendment.

Even if the mere filing of a petition to revoke probation could be viewed as unconstitutional "compulsion," moreover, it would not follow that Entzi has a cause of action for damages under § 1983. To the contrary, the general rule is that a person has no claim for civil liability based on the Fifth Amendment's guarantee against compelled self-incrimination unless compelled statements are admitted against him in a criminal case. Chavez v. Martinez, 538 U.S. 760, 767, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003) (plurality opinion); id. at 778, 123 S.Ct. 1994 (Souter, J., concurring in judgment). According to the narrowest opinion in Chavez, see Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), the "basic guarantee" of the self-incrimination clause is "evidentiary," so extensions of that guarantee are warranted only if "the core guarantee, or the judicial capacity to protect it, would be placed at risk in the absence of such complementary protection." Id. at 778, 123 S.Ct. 1994 (Souter, J., concurring in judgment). A fractured Supreme Court left open the possibility that a "powerful...