Searcy v. Simmons

• Decision Date: 13 August 1999
• Docket Number: Civil Action No. 97-3421-KHV.
• Citation: 68 F.Supp.2d 1197
• Parties: Edgar SEARCY, Plaintiff, v. Charles SIMMONS and Robert D. Hannigan, Defendants.
• Court: U.S. District Court — District of Kansas

68 F.Supp.2d 1197

Edgar SEARCY, Plaintiff, v. Charles SIMMONS and Robert D. Hannigan, Defendants.

Civil Action No. 97-3421-KHV.

United States District Court, D. Kansas.

August 13, 1999.

David J. Waxse, Paul W. Rebein, Brent E. Dryer, Shook, Hardy & Bacon, L.L.P., Overland Park, KS, for Edgar Searcy.

Edgar Searcy, Hutchinson, KS, pro se.

Hsing Kan Chiang, Office of Attorney General, Topeka, KS, for Charles Simmons, Robert D. Hannigan.

John M. Knox, Lawrence, KS, for Mike Woods.

MEMORANDUM AND ORDER

VRATIL, District Judge.

Plaintiff brings suit under 42 U.S.C. § 1983, alleging that defendants violated his constitutional rights by reducing his inmate incentive level after he refused to enter into a recommended rehabilitation program at Hutchinson Correctional Facility. This matter comes before the Court on plaintiff's "[Motion For Preliminary Injunction And Temporary Restraining Order]" (Doc. # 48) filed September 14, 1998,¹ and plaintiff's Motion For Leave To File Reply Out Of Time (Doc. # 98) filed June 25, 1999. For reasons stated more fully below, plaintiff's motion for preliminary injunction is overruled.²

Facts³

Plaintiff is an inmate at Hutchinson Correctional Facility ["HCF"], serving a 65 month sentence after pleading nolo contendere, in January 1997, to charges of sexual exploitation of a child. As part of plaintiff's rehabilitation program, officials of the Kansas Department of Corrections ["KDOC"] determined that plaintiff should be placed in the Sexual Abuse Treatment Program ["SATP"] at HCF. In order to participate in the SATP, an inmate must sign an "Admission of Responsibility" form. The form requires the inmate to list all past behavior that may have constituted a sex offense, regardless whether the inmate was ever arrested, charged or convicted as a result of the conduct. An inmate who participates in the SATP must also submit to polygraph and penile plethysmograph examinations which are videotaped.⁴

On February 5, 1997, the SATP coordinator at HCF interviewed plaintiff for the program which was scheduled to begin March 2, 1997. During the interview plaintiff refused to fill out and sign the "Admission of Responsibility" form. Because of his refusal, KDOC officials did not allow him to participate in the SATP. Furthermore, because of his nonparticipation, they reduced plaintiff's incentive level from Level 3 to Level 1.

Internal Management Policy and Procedure 11-101 ["IMPP 11-101"] governs inmate privileges and incentives, and distinguishes several levels of privileges. At Level 1, an inmate receives limited activities, limited expenditures, limited incentive pay, and only limited access to personal property. To move to a higher level, an inmate must participate in recommended programs for at least 120 days. IMPP 11-101 states that an inmate's privilege level should be automatically reduced to Level 1 if he refuses to participate in recommended programs.

Plaintiff alleges that because of this reduction he lost privileges, personal property and incentive pay, and suffered physical and emotional injury. Plaintiff also alleges that defendants have denied him "good time credits" which he would otherwise receive if he had signed the "Admission of Responsibility" form. Plaintiff seeks a preliminary injunction to prevent defendants from withholding privileges and benefits or penalizing him for refusing to provide potentially incriminating information related to past sexual behavior or offenses, and to prevent defendants from withholding privileges and benefits or penalizing him for not participating in polygraph or plethysmograph examinations. Plaintiff also seeks a preliminary injunction to compel defendants to restore him to the privilege level that he held before he refused to sign the "Admission of Responsibility" form.

Preliminary Injunction Standard

The purpose of a preliminary injunction is "to preserve the status quo pending the outcome of the case." Tri-State Generation & Transmission Ass'n, Inc. v. Shoshone River Power, Inc., 805 F.2d 351, 355 (10th Cir.1986). A preliminary injunction is a drastic and extraordinary remedy, and courts do not grant it as a matter of right. See Paul's Beauty College v. United States, 885 F.Supp. 1468, 1471 (D.Kan.1995); 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Injunctions § 2948, at 128-29 & nn. 3, 6-7 (1995). The Court must deny injunctive relief if the moving party fails to establish any requisite element, see Packerware Corp. v. Corning Consumer Prods. Co., 895 F.Supp. 1438, 1446 (D.Kan.1995), and the moving party must establish that it is entitled to injunctive relief by clear and unequivocal proof. See Penn v. San Juan Hosp., Inc., 528 F.2d 1181, 1185 (10th Cir. 1975); Paul's Beauty College, 885 F.Supp. at 1471.

In order to obtain a preliminary injunction, plaintiff must establish that (1) he will suffer irreparable injury unless the injunction issues; (2) the threatened injury outweighs whatever damage the proposed injunction may cause defendants; (3) the injunction, if issued, will not be adverse to the public interest; and (4) there is a substantial likelihood that plaintiff will eventually prevail on the merits. See Resolution Trust Corp. v. Cruce, 972 F.2d 1195, 1198 (10th Cir.1992); Tri-State, 805 F.2d at 355 (citing Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir.1980)); Heatron, Inc. v. Shackelford, 898 F.Supp. 1491, 1498 (D.Kan.1995).

Analysis

I. Plaintiff Is Not Substantially Likely To Prevail On The Merits

Plaintiff claims that he is entitled to a preliminary injunction because defendants' conduct violates his constitutional right against self-incrimination and his constitutional right to the free exercise of religion and privacy and bodily integrity. The Court finds that plaintiff is not likely to prevail on any of his claims, however, and that he therefore is not entitled to the injunctive relief which he seeks.

A. Self-Incrimination

Plaintiff argues that by requiring him to complete an "Admission of Responsibility" form, the SATP compels him to reveal potentially incriminating information about his sexual history and thus violates his Fifth Amendment rights against self-incrimination. Plaintiff claims that his "refusal to provide this incriminating information was the sole motivating factor for his loss of privileges and denial of good time benefits," see Supplemental Memorandum In Support Of Motion For Preliminary Injunction/Temporary Restraining Order (Doc. # 83) filed May 7, 1999, at 10, and concludes that defendants violated his Fifth Amendment right by penalizing him for invoking that right. See, e.g., United States v. Oliveras, 905 F.2d 623, 626-28 (2d Cir.1990); United States v. Perez-Franco, 873 F.2d 455 (1st Cir.1989); Estelle v. Smith, 451 U.S. 454, 468, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) (Fifth Amendment guarantees person right to remain silent unless he chooses to speak of his own will and to "suffer no penalty ... for such silence." (citation omitted)). See also Lile v. McKune, 24 F.Supp.2d 1152 (D.Kan.1998) (application of IMPP 11-101 to inmate who refuses to participate in SATP violates inmate's right against self-incrimination).

The Court addressed this exact issue in its recent opinion in Johnston v. Simmons, 45 F.Supp.2d 1220 (D.Kan.1999) (sustaining defendant's motion for summary judgment); see also Johnston v. Simmons, 45 F.Supp.2d 1220 (D.Kan.1999) (overruling plaintiff's motion for preliminary injunction). As here, plaintiff in Johnston argued that application of IMPP 11-101 violated his rights against self-incrimination. The Court rejected the argument in light of Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998).

In Woodard, a death row inmate was forced to either confess his guilt or face a reduced chance at clemency. The United States Supreme Court 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. See id., 118 S. Ct at 1252-53.⁵ Plaintiff in Woodard did not face a possible loss of privileges and benefits but, rather, a possible loss of 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 — could hardly be sufficient.

Because plaintiff in this case retained the right to choose whether to enter the SATP, it is unlikely that he will prevail on his claim that the program violates his right against self-incrimination, even if IMPP 11-101 causes a reduction in privileges. See Woodard, 118 S.Ct. at 1252. As in Johnston, the Court reiterates 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.

In summary, the eligibility requirements for the voluntary SATP do not violate plaintiff's right against self-incrimination, despite the reduction in privileges caused by his nonparticipation in the program. Accordingly, plaintiff is not likely to prevail on his Fifth Amendment claim, and he therefore is not entitled to injunctive relief with respect to the SATP "Admission of Responsibility" eligibility requirement.

B. Free Exercise of Religion

Plaintiff contends that he holds sincere religious beliefs⁶ which prohibit his exposure to sexually explicit materials like those used in the plethysmograph examinations. He therefore argues that the SATP requirement that he submit to a plethysmograph examination violates his freedom of religion under the First Amendment to the United States Constitution.

The Supreme Court examines four factors to determine whether a prison regulation...