Johnston v. Simmons
| Decision Date | 31 March 1999 |
| Docket Number | Civil Action No. 97-3354-KHV. |
| Parties | Marvin W. JOHNSTON, Plaintiff, v. Charles SIMMONS, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
Marvin W. Johnston, Lansing, MI, pro se.
Hsing Kan Chiang, Office of Atty. Gen., Kansas Judicial Center, Topeka, KS, for defendants.
This matter comes before the Court on plaintiff's Motion For Preliminary Injunction (Doc. # 5) filed November 24, 1997; plaintiff's Motion For Order To Show Cause (Doc. # 6) filed March 15, 1998; plaintiff's Motion For Leave To File Amended Complaint (Doc. # 15) filed January 12, 1999; and plaintiff's Motion To Stay Defendant's Motion For Summary Judgment (Doc. # 20) filed February 2, 1999. Plaintiff brings suit under 42 U.S.C. § 1983, alleging that defendants violated his constitutional rights by reducing his incentive level after he refused to enter into recommended rehabilitation programs at Lansing Correctional Facility.
Plaintiff is an inmate at Lansing Correctional Facility, serving 35 years to life for a 1979 conviction. Plaintiff appeared before the Kansas Parole Board in March of 1994, at which time the board denied parole and determined that plaintiff would next be eligible for parole in April of 1997. In denying parole, the board noted the serious nature and circumstances of plaintiff's crime, his history of criminal activities, his failure to participate in mental health counseling or sex offender treatment programs, and the fact that he has been in prison six times.
On April 20, 1995, prison officials gave plaintiff an "Inmate Program Plan" which recommended rehabilitation programs to help plaintiff get parole and adjust to life after prison. Specifically, prison officials recommended a GED educational program, a sex offender treatment program, mental health counseling, and a vocational education program. Plaintiff refused to enter into an agreement to participate in these programs.2 On August 21, 1996, prison officials again suggested that plaintiff complete the sexual abuse treatment program. Plaintiff refused.
In March of 1997, the parole board again denied plaintiff parole, noting the serious nature and circumstances of plaintiff's crime, plaintiff's criminal history, his five stays in prison,3 his objections regarding parole,4 and his failure to participate in rehabilitation programs. The board deferred plaintiff's next parole hearing until April of 2003 due to plaintiff's extensive history of crimes against persons (including children).
On April 29, 1997, prison officials again recommended to plaintiff that he complete the GED program. Plaintiff refused. Prison officials repeated their recommendation on July 18, 1997 and plaintiff again refused.
Internal Management Policy and Procedure 11-101 ("IMPP 11-101") governs inmate privileges and incentives, and distinguishes several levels of privileges. At Level 1, inmates receive only limited access to personal property (such as televisions), limited activities, limited expenditures and limited incentive pay. 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 such programs. As a result of plaintiff's failure to participate in such programs, prison officials reduced his incentive level to Level 1. Plaintiff alleges that because of this reduction, he lost his job, privileges and personal property. Plaintiff seeks a preliminary injunction to prevent defendants from trying to force him to enter into a program plan, and to prevent them from transferring him to a less desirable facility or cellhouse based on his refusal to enter into a plan.5 Defendants have not responded to plaintiff's motion.
The purpose of a preliminary injunction is "to preserve the status quo pending the outcome of the case." Tri-State Generation and 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. 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 § 2948, at 128-29 & nn. 3, 6-7 (1995). We must deny injunctive relief if the moving party fails to establish any requisite element, 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. Penn v. San Juan Hosp., Inc., 528 F.2d 1181, 1185 (10th Cir.1975); Paul's, 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 defendant; (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. 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).
Plaintiff claims that he is entitled to a preliminary injunction because defendants' conduct violates the constitutional prohibition on ex post facto laws. See U.S. Const., art. 1, § 9, cl. 3; art. 1, § 10, cl. 1. "An ex post facto law is `any law which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.'" Raymer v. Enright, 113 F.3d 172, 174 (10th Cir.1997) (quoting Weaver v. Graham, 450 U.S. 24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981)). In determining whether a rule violates the ex post facto clause, the Court focuses on whether the change alters the definition of criminal conduct or increases the penalty by which a crime is punishable. See California Dept. of Corrections v. Morales, 514 U.S. 499, 506-07 n. 3, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995).
Plaintiff argues that K.S.A. § 22-3717, K.S.A. § 75-5210a and IMPP 11-101 violate the prohibition on ex post facto laws because defendants are using them to require him to complete recommended programs as a condition of parole. Section 75-5210a directs the Secretary of Corrections to enter into inmate program agreements that list the programs that particular inmates must complete to be prepared for release on parole. Section 22-3717(g)(2) states that to be eligible for parole, an inmate must complete the programs listed in his program agreement under Section 75-5210a. Plaintiff argues that such programs were not a condition for parole when he entered prison in 1979 and that defendants have increased his penalty by adding requirements for parole that could lengthen his sentence. The Court finds, however, that plaintiff is not likely to prevail on this claim.
First, the statutes and policy do not require that plaintiff complete recommended rehabilitative programs as a condition of parole. Sections 22-3717 and 75-5210a do not apply to plaintiff because plaintiff was incarcerated in 1979 and the Kansas legislature did not enact these provisions until 1988. Under Kansas law, the statutes are not retroactive. See Payne v Kansas Parole Bd., 20 Kan.App.2d 301, 304, 887 P.2d 147, 151 (1994). Defendants do not disagree. Therefore plaintiff is not required to enter into a program agreement, nor is he required to complete any agreed programs as a condition of parole. Plaintiff's eligibility for parole may be harmed by his failure to participate in such programs, but his eligibility does not hinge on program completion.6 Plaintiff's penalty for his crimes is therefore no more onerous than it was when he entered prison.
Second, plaintiff alleges that as a result of his refusal to enter into a program agreement, defendants have deprived him of property and privileges. Plaintiff admits that this is not an ex post facto violation, but argues that defendants are using IMPP 11-101 to require him to sign a program agreement and that the policy therefore amounts to an indirect ex post facto law. The Court finds, however, that plaintiff is not likely to prevail on this claim. The policy does not contain any requirement that plaintiff sign a program agreement, nor does it punish plaintiff for failing to sign an agreement. Under IMPP 11-101, prison officials automatically reduce an inmate's incentive level for refusing to participate in recommended programs. Defendants' only redress for inmate nonparticipation is a reduction in incentive level. Courts have found that the portions of IMPP 11-101 which allow the reduction in incentive level are not ex post facto violations because they do not increase an inmate's punishment. See Maberry v. McKune, 24 F.Supp.2d 1222, 1228 (D.Kan.1998); Vinson v. McKune, 265 Kan. 422, 426, 960 P.2d 222, 224-25 (1998); Nemechek v. McKune, 24 Kan.App.2d 72, 75, 941 P.2d 952, 954 (1997).
Plaintiff apparently argues that even if K.S.A. § 22-3717, K.S.A. § 75-5210a and IMPP 11-101 do not run afoul of the ex post facto clause, defendants do so through their actions. Plaintiff alleges that defendants are attempting to coerce plaintiff to sign a program plan by using IMPP 11-101 against him. He further alleges that once he signs a plan, defendants will apply both K.S.A. § 22-3717 and § 75-5210a retroactively to him to require him to complete his program plan before he can be eligible for parole. At this point, however, plaintiff's allegations amount to no more than mere speculation. The record contains no evidence that defendants have forced plaintiff to sign a program plan. Plaintiff repeatedly stresses that he has not entered into a program plan, despite defendants'...
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